Last month, we discussed New York State’s Paid Sick Leave Law (NYSSLL), a newly enacted law that requires employers located in New York State to provide their employees with paid or unpaid sick leave effective September 30, 2020. As was discussed in that article, the NYSSLL in many ways took cues from New York City’s Earned Sick and Safe Time Act (NYCESSTA), a similar but not identical law that has been on the books for several years.
In an effort to make the two laws more consistent with one another, the New York City council made changes to the NYCESSTA that went into effect on September 30. While many provisions in the two laws are now more or less mirror images of one another, there remain certain differences that NYC employers need to be aware of.
First, let’s start with the changes that make the two laws more consistent:
- Updated Definition of “Employee.” For purposes of NYCESSTA, an “employee” eligible to accrue sick and safe time as any individual employed to work in the City. The law previously required that an Employee work 80 or more hours per calendar year to be eligible.
- Updated Leave Entitlement. NYCESSTA’s leave entitlements are now the same as those under NYSSLL. How much leave an employee is entitled to and whether it is paid or unpaid depends upon the employer’s size and net income:
- Employers with 4 or fewer employees in any calendar year, and net income of less than $1 million in the previous tax year are required to provide up to 40 hours of unpaid sick leave each calendar year.
- Employers with 4 or fewer employees in any calendar year, and net income of more than $1 million in the previous tax year are required to provide up to 40 hours of paid sick leave each calendar year.
- Employers with 5 to 99 employees in any calendar year are required to provide at least 40 hours of paid sick leave each calendar year.
- Employers with 100 or more employees in any calendar year are provide at least 56 hours of paid sick leave each calendar year.
- Waiting Period Eliminated. NYCESSTA previously imposed a 120-day waiting period from the date of hire within which employers could prohibit employees from taking accrued leave. This waiting period has been eliminated.
In addition to making the two laws more consistent with one another, as I mentioned above these laws are not identical. There are key differences that City employers need to be aware of, including the following:
- Pay Stub & Posting Requirements. Employers subject to NYCESSTA are now required by November 30 to include on the employee’s pay stub (or on a separate document issued each pay period) details regarding how much leave has been accrued and used during the pay period as well as a summary of how much unused leave the employee has accrued. Employers must also post a written notice summarizing the law’s requirements and distribute it to new and existing employees. Note that the notice currently available on the Department of Consumer Affairs’ (DCA) website has not been updated at the time of this writing.
- Documentation. NYCESSTA continues to provide that employers may request documentation from employees substantiating the need to take leave if the leave is for a period of three or more consecutive days. However, if the employee is charged a fee to obtain the documentation (for example, for duplication of medical records), the employer must now reimburse the employee for those costs.
- Broadened Definition of Retaliation. While retaliation against an employee for using leave was prohibited under the prior law, the law’s definition of retaliation has been expanded to include a wide range of conduct. Suffice to say that under an employee rights statute such as this, any adverse action taken in the wake of a leave request can be construed as retaliatory.
- Beefed Up Penalties and Enforcement. The updates to NYCESSTA include increased civil penalties of up to $15,000, and where multiple employees or former employees are concerned, monetary payments of up to $500 per impacted individual. The DCA may now also investigate suspected violations on its own (previously an employee had to first complain). Additionally, the City’s Corporation Counsel has been empowered to bring civil actions against employers to address violations of the law.
As these changes have already gone into effect with little advance notice, employers located within New York City should take immediate steps to update their policies to comply with the updated law. All supervisors and human resources personnel responsible for leave requests need to be made aware of these changes, and you should likewise consult with those responsible for processing your company’s payroll to ensure that each employee’s accrual and usage of sick time is properly recorded and reported to that employee.