If Pain, Yes Gain — Part 121: New York City Paid Sick Time Turns 10 Years Old

What You Need to Know:

• Earlier this month, the New York City Earned Safe and Sick Time Act (“ESSTA”) – the City’s paid sick leave mandate – celebrated its 10-year anniversary.
• Unique substantive requirements, regular amendments to the Ordinance, Rules and administrative guidance, and proactive enforcement have been hallmarks of the mandate since it went into effect in April 2014.

ESSTA’s Evolution.

When paid sick leave came to New York City in 2014, the mandate was just one of a handful of paid sick leave laws around the country. Today, there are 19 states with a paid sick leave or paid time off mandate, including New York State, as well as more than two dozen localities with such mandates.[1]

Much has happened with New York City paid sick leave in the last 10 years. For starters, ESSTA was not always “ESSTA.” Rather, from 2014 to 2018, the City’s paid sick leave mandate was known as the ESTA or the Earned Sick Time Act. It was not until the ordinance was amended in 2018 that “safe time” covered absences were added as employee entitlements.[2]

While 2018 was the first time ESSTA was amended, it was not the last. The most recent amendments occurred just last month when the City amended ESSTA to create a private right of action to enforce the mandate. In addition, in 2020, the City amended ESSTA to align with the new New York statewide paid sick leave mandate (“NYSPSL”) that went into effect on September 30, 2020. ESSTA was amended again in late-2021, this time by expanding the mandate to include paid leave to employees in connection with vaccinating their children for COVID-19.[3]

One of the major compliance challenges facing New York City employers is that ESSTA amendments are not limited to the ordinance. It has been commonplace for the City to also revise its corresponding Rules and administrative guidance. For instance, the ESSTA Rules have been amended multiple times over the last 10 years, with the most recent update to the Rules occurring in October 2023. These amendments were quite impactful as they touched on a number of substantive requirements and standards, including employer size, employee eligibility, notice requirements, documentation standards, payment of sick/safe time, and written ESSTA policy requirements.

ESSTA administrative materials, such as FAQs and model notices, have also been revised periodically to reflect changes in the ordinance or Rules. For instance, in 2018, following the addition of “safe time” coverage to ESSTA, the City updated both its Rules and corresponding FAQs accordingly. Similarly, following the ESSTA amendments to align with the NYSPSL law in 2020, the City updated both its FAQs and model notice. Employers await updates to the City’s ESSTA FAQs, which currently note that the City “will update the FAQs to reflect new Rule amendments that took effect on October 15, 2023” and that employers should continue to monitor the ESSTA website for updates.

ESSTA Enforcement.

NYC ESSTA has historically been and remains one of the most actively enforced paid sick leave mandates in the country. In addition to the new private right of action added to the ordinance last month (see above), ESSTA compliance is enforced by the New York City Department of Consumer and Workers Protection (“DCWP”). According to a press release issued by the City earlier this month to celebrate ESSTA’s 10-year anniversary, “[s]ince 2014, DCWP has received more than 3,600 complaints about potential violations of the law and closed more than 2,900 investigations, securing nearly $22 million in restitution for nearly 68,000 workers.”

In 2023 alone, the City saw nearly 300 complaints of alleged ESSTA violations, opened more than 250 ESSTA investigations, closed more than 220 ESSTA investigations, and collected more than $3.6 million from companies between a combination of employee restitution and administrative penalties payable to the City.

In terms of penalties, ESSTA maintains a broad set of potential penalties that can be enforced against employers that are alleged to have violated ESSTA or the Rules. In addition to penalties for certain specific ESSTA violations (i.e., unlawful retaliation, failure to provide the required Notice of Employee Rights, etc.), ESSTA penalties are generally measured on a per employee basis. The October 2023 amendments to the ESSTA Rules expanded the scope of potential penalties by creating a “reasonable inference” that an employer who does not (1) maintain and distribute a compliant earned safe and sick time policy (in accordance with ESSTA’s written policy requirements) or (2) maintain adequate records of employees’ accrued paid safe and sick time use and balances (in accordance with ESSTA’s recordkeeping and balance notification requirements), does not provide or refuses to allow use of earned safe and sick time in accordance with ESSTA as a matter of official or unofficial policy or practice. Further, each year that the unlawful policy or practice is in effect is considered a separate violation under ESSTA.

ESSTA Basics.

As a reminder, under ESSTA employers must permit employees to accrue paid sick and safe time at a rate of 1 hour for every 30 hours worked, up to (1) 40 hours per year for employers with 99 or fewer employees; and (2) 56 hours per year for employers with 100 or more employees nationwide.  These ESSTA accrual caps conform with the NYSPSL Law.  Additionally, regardless of carryover balances, employees need not be permitted to use more than 40 or 56 hours of paid safe and sick time per year, depending on employer size.

Eligible employees can use ESSTA for the following reasons: (1) an employee's mental or physical illness, injury or health condition, need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition, or need for preventive medical care; (2) care of a family member with a mental or physical illness, injury or health condition, who needs medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition, or who needs preventive medical care; (3) certain absences from work when the employee or employee’s covered family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking; and (4) absences due to closure of the employee’s place of business or the employee’s child’s school or childcare provider that has been closed by order of a public official due to a public health emergency. For additional details on ESSTA, see our prior Legal Updates here and here.  

Employer Takeaways.

We will continue to monitor the DCWP’s ESSTA website for additional paid leave developments in New York City, including expected updated ESSTA FAQs and further enforcement metrics by the DCWP, and update employers as appropriate.

With the paid leave landscape continuing to expand and grow in complexity, we encourage companies to reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with these laws and paid leave requirements more generally.  To stay up to date on paid leave developments, please click here to sign up for Seyfarth’s Paid Leave mailing list.  Companies interested in Seyfarth’s paid sick leave laws survey should reach out to paidleave@seyfarth.com

 

[1] Today, the states that have enacted a statewide general non-COVID-19 paid sick leave or paid time off mandate include: (1) Arizona; (2) California; (3) Colorado; (4) Connecticut; (5) Illinois (PTO law) (effective 1/1/2024); (6) Maine (PTO law); (7) Maryland; (8) Massachusetts; (9) Michigan; (10) Minnesota (effective 1/1/2024); (11) Nevada (PTO law); (12) New Jersey; (13) New Mexico; (14) New York; (15) Oregon; (16) Rhode Island; (17) Vermont; and (18) Washington. In addition, (19) Virginia has a statewide paid sick leave law that applies only to certain home health workers. There also is a non-COVID-19 paid sick leave mandate in (20) Washington, D.C.. Further, including New York City there are more than two dozen municipalities with non-COVID-19 paid sick leave or paid time off mandates in the United States.

[2] According to the ESSTA FAQs, “Covered employees can use safe leave if they or a family member may be the victim of any act or threat of domestic violence, unwanted sexual contact, stalking, or human trafficking, and they need to take actions necessary to restore the physical, psychological, or economic health or safety of themselves or family members, or to protect those who associate or work with the employee.”

[3] The COVID-19 child vaccine paid leave component of ESSTA sunset on December 31, 2022.