On September 15, 2023, the New York City Department of Consumer and Worker Protection updated the City’s Earned Safe and Sick Time Act (ESSTA) regulations. The changes are effective October 15, 2023. Here, we summarize the changes that covered New York City employers must be aware of:
- Coverage under ESSTA
The revised regulations now explicitly state that an employee who works entirely remotely is not covered by ESSTA, even if the business for which they work is in NYC. However, if the employee comes to New York City to “regularly perform” work in the City, any hours worked in New York City would be covered by ESSTA and would “count” towards any ESSTA accruals. Again, however, the amended regulations make it clear that de minimis time in New York City from an otherwise remote or hybrid worker would not trigger ESSTA’s coverage. Some discretion and judgment will have to be used by employers to assess the coverage status of any employees who potentially fall into this “de minimis” category.
- Employer Size and Coverage
The amended regulations clarify that, for purposes of determining employer size under ESSTA, the employer’s total employee number counts, not just the number of employees working in New York City. This is important because employers with 100 or more employees are required to provide up to 56 hours of ESSTA time to an employee per year, while smaller employers are only obligated to provide up to 40 hours.
- Notice of Leave
The amended regulations require that an employer identify the manner and method that employees will seek leave in a written policy. The regulations continue to differentiate between when notice may be required for an “unforeseeable” absence (“as soon as practicable”) and a “foreseeable” absence (up to seven days in advance of the absence), but make clear that an absence may only be considered “foreseeable” if the employee is aware of the need to use safe and sick time seven days or more before the use. Short of that, the absence is “unforeseeable.” Employers can require “reasonable methods” of providing advance notice, which now also may include sending an email to a designated email address or submitting a leave request in a scheduling software system, provided the employee has access to such system on non-work time, and has been trained on and given written instructions on how to use the system.
To align with the 2020 amendments to the ESSTA, the regulations now indicate that employers requiring written documentation of an employee’s need for sick time must reimburse employees for all fees charged by a licensed health care provider. Likewise, the employer must reimburse the employee for all reasonable costs or expenses incurred in obtaining documentation for safe time. Employers requiring written documentation for sick and safe time use must include the following information in a written policy: a statement of the requirement, the types of written documentation the employer will accept, and instructions on how employees can submit the documentation to the employer.
- Paystub Reporting Changes
The 2020 amendments to the ESSTA created a requirement for employers to show “the amount of safe/sick time accrued and used during a pay period and an employee’s total balance of accrued safe/sick time . . . on a pay statement or other form of written documentation provided to the employee each pay period.” The revised regulations clarify that employers must specify (1) the total balance and (2) the amount of time available for use if those two values differ (e.g., an employee with an 80-hour balance due to carryover of unused time from a prior calendar year may only have 56 hours “available” for use in the current calendar year if the employer imposes an annual usage cap).
Shortly after the 2020 amendment to the ESSTA, the Department issued informal guidance on its webpages indicating that employers could meet this reporting requirement “on a paystub or through an employee-accessible system.” The amended regulations now formalize this compliance option, and indicate that employers using an electronic system to issue pay statements or other documentation related to sick and safe time must: (i) electronically alert the employee each pay period to the availability of the required information; (ii) make the required content readily accessible by the employee outside of the workplace within the electronic system; and (iii) maintain accrual, use, and balance information for any past pay period in the electronic system so that it is readily accessible to the employee outside of the workplace.
The amended regulations make significant substantive changes to compliance requirements for ESSTA-covered employers. In addition to procedural changes, employers will be required to amend their employee handbook policies and paystub reporting by the October 15, 2023 effective date. @Forework, our team of employment attorneys and payroll experts are working on these changes already for our payroll clients and making the necessary changes to paystub reporting requirements.