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With our new remote work environment, employers need to be knowledgeable of a wider variety of laws. One such law to be aware of is the New York City Earned Safe and Sick Time Act (NYC ESSTA) and the amendments that went into effect on October 15, 2023 and March 20, 2024. The October amendments clarified which employees were included when determining the amount of leave to be provided and whether leave was paid or unpaid. The March amendments added a private right of action for employees to sue for violations without the necessity of first going through the administrative process.
What is the New York City Earned Safe and Sick Time Act?
In 2014, the New York City Counsel enacted a law entitling both part-time and full-time employees who work in New York City to take leave to care for themselves or an ill family member, or to seek services, assistance or other safety measures in relation to domestic violence, sexual assault, stalking or human trafficking. Under NYC ESSTA, leave accrues at 1 hour for every 30 hours worked and may be taken in partial day increments once accrued. The amount of leave required depends upon the size of the employer and is allocated as follows:
40 hours unpaid leave per year: Employers with 0-4 workers and net income of less than $1 million per year.
40 hours paid leave per year: Employers with (i) 0-4 workers and a net income of $1 million or more, (ii) 1-99 domestic workers, or (iii) 5-99 non-domestic workers.
56 hours paid leave per year: Employers with 100+ domestic or non-domestic workers.
Which employees are included in the count?
The amendments that went into effect on October 15, 2023 clarified that all employees nationwide are included in the count to determine the type of leave required. The October amendments also clarified that the count included part-time employees, joint employees (who must be included by each joint employer), employees who are on leave, and employees who are on disciplinary suspension.
Who is eligible to take leave under the New York City Earned Safe and Sick Time Act?
The October 2023 amendments clarified that an employee working for a New York City employer remotely from another state would not be eligible for NYC ESSTA leave unless that employee was expected to regularly perform work in New York City during the calendar year. Based upon the examples given in the amendment, an employee who worked exclusively from New Jersey for a New York City employer and only traveled to New York City infrequently for business purposes would not be eligible for such leave. However, an employee who works primarily in New Jersey, but is expected to regularly attend in person meetings in New York City would likely be entitled to NYC ESSTA leave for the time spent in New York City, accrued at 1 hour for every 30 hours worked in New York City.
What if the number of employees changes throughout the year?
The October amendments further state that the employer size is based upon the highest number of employees during the calendar year. If the number of employees increases during the calendar year, increased leave must be provided prospectively from the date of the increase. However, reductions in leave due to reductions in force may only be applied in the next calendar year.
What is the penalty for non-compliance?
The employer has the burden to prove compliance. The October amendments provide that there will be a negative inference drawn against an employer if it cannot produce evidence that it maintained and distributed a written safe and sick time policy that comports with the law, or if the employer fails to maintain adequate records of the employees’ accrued time and balances. The amendments that went into effect on March 20, 2024 further enhance the penalties for non-compliance by affording employees a private right of action to sue an employer for violating the NYC ESSTA. More particularly, Section 20-924 of the New York City Administrative Code was amended to permit an employee to commence litigation against an employer for non-compliance so long as the action was commenced within two years from the date that the employee knew or should have known of the violation. In addition to court costs, reasonable attorneys’ fees and other injunctive and declaratory relief, an employee may seek the following damages in litigation:
- Treble Damages or $250.00, whichever is greater: The greater of $250.00 or three times the wages that an employee was entitled to receive for each instance that an employer failed to pay safe or sick time.
- $500.00:
- For each instance of safe or sick time requested by an employee that was not taken as such leave was unlawfully denied by the employer;
- For each instance where the employer unlawfully conditioned leave upon the employee finding a replacement worker;
- For each instance where the employer unlawfully required the employee to make up leave time without the employee’s mutual consent; or
- For each employee covered by a policy that does not provide for, or allow the use of, safe or sick time in accordance with the law.
- Lost wages and benefits, equitable relief, plus $500.00: For each instance of retaliation and interference with the employee taking leave (excluding unlawful discharge from employment).
- Lost wages and benefits, equitable relief, including job reinstatement, plus $2,500.00: For each instance of unlawful discharge for requesting or taking leave.
What should I do now as an employer?
Start by assessing whether you have any employees working in New York City, physically or remotely. If you do, check your employee handbook to ensure that you have a written policy included therein to accurately advise your New York City employees of their right to take NYC ESSTA. You should also check your paycheck stubs to ensure that NYC ESSTA time is accurately reflected thereon as is required by the law. You should similarly check the personnel files of your New York City employees to confirm that you have something in writing from those employees acknowledging receipt of the employee handbook. You should finally check your head count now, and periodically, to ensure that you are providing the correct amount of NYC ESSTA leave to your New York City Employees. If you do not have an employee handbook, we would be happy to assist you with drafting an employee handbook that comports with all appropriate New York City and New York State Laws.
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