New York City has enacted legislation (Int. No. 2032-A) that amends the city's Earned Safe and Sick Time Act (ESSTA) to better align with the New York State Paid Sick Leave (NYPSL) law. Int. No. 2032-A is effective immediately.
Background:
Earned Safe and Sick Time Act:
New York City's ESSTA requires employers with five or more employees to provide employees with up to 40 hours of paid sick leave per year to recover from physical/mental illness or injury, seek medical treatment, care for a sick family member, or when they or their family member is a victim of domestic violence, a sexual offense, stalking, or human trafficking. Smaller employers must also offer sick leave, but it may be unpaid. To be eligible, the employee must work within the City for more than 80 hours in a calendar year.
New York State Paid Sick Leave:
On April 2, 2020, New York enacted Senate Bill 7506B which requires all employers in the state to provide employees with sick leave. The law takes effect on January 1, 2021; however, employees must begin accruing sick time on September 30, 2020.
The amount of sick leave employers must provide, and whether it is paid or unpaid, depends on the size of the business and revenue in the previous tax year.
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Employer Size
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Amount of Leave Per Year
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Paid or Unpaid?
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4 or less employees (businesses with net income of $1 million or less in the previous tax year)
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40 hours
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Unpaid
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4 or less employees (businesses with net income over $1 million in the previous tax year)
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40 hours
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Paid
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5-99 employees
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40 hours
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Paid
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100 or more employees
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56 hours
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Paid
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ESSTA Amendments (Int. No. 2032-A)
Covered Employees:
Int. No. 2032-A removes the requirement for eligible employees to have performed more than 80 hours of work in the City in a calendar year.
Obligation to Provide Paid Leave:
The ESSTA allowed employers with less than five employees and a net income of less than one million dollars during the previous tax year to provide unpaid leave. Int. No. 2032-A now requires employers with four or fewer employees and a net income of one million or more dollars in the previous tax year to provide up to 40 hours of paid sick leave.
Accrual Rate and Caps:
The ESSTA permitted employers to cap annual accrual at 40 hours. The amendments now require employers with 100 or more employees to allow an employee to accrue up to 56 hours of leave per year. Smaller employers may continue to cap accrual at 40 hours.
Eligibility to Use Accrued PSL:
The ESSTA permitted employers to impose a waiting period of up to 120 calendar days after the start of employment before an employee may use their leave. Int. No. 2032-A removes waiting periods for newly hired employees, allowing employees to use their leave as it accrues.
Employer Pay Statement Requirements:
The amendments require employers to provide employees, each pay period, with: (1) the amount of leave accrued and used by an employee during a pay period, and (2) the employee's total balance of sick and safe leave by September 30, 2020. This information may be provided on pay statements or a separate written statement.
Note: For the employer pay statement requirement only, employers who fail to meet this deadline, but who work to meet the requirement in good faith will have until November 30, 2020 to comply.
Employer Notice and Posting Requirements:
Int. No. 2032-A requires updated notices of leave rights to be distributed to employees upon hire.
While the NYC rules indicate that employers should provide notice by 10/30/20, the NYC agency website provides the following information suggesting that certain employers have more time.
Note: Under the New Amendments effective September 30,2020, the following employers must provide an updated notice of rights to employees by January 1, 2021.
Employers with 100 or more employees;
Employers of domestic workers.
We therefore recommend distributing the notice as soon as possible. You may distribute these notices electronically (i.e. via email).
Download a copy of the Notice of Employee Rights (scroll to bottom of page).
Employers must also post the notice conspicuously at their business location in an area accessible to all employees.
Compliance Recommendations:
New York City employers should review Int. No. 2032-A in full, along with their policies and procedures, to ensure compliance with the amendments. Please contact your dedicated service professional with any questions.