If Pain, Yes Gain —Part 91: New York City Publishes Updated Earned Safe and Sick Time Model Notice

Seyfarth Synopsis: Yesterday, October 27, 2020, the New York City Department of Consumer and Worker Protection published an updated English version of its model “Notice of Employee Rights: Safe and Sick Leave” under the New York City Earned Safe and Sick Time Act (“ESSTA”). To comply with ESSTA, employers must (a) conspicuously post the model notice at an employer’s place of business in an area accessible to employees and (b) provide the notice to each new hire at the commencement of employment, and to current employees by the deadlines specified below.

On September 30, 2020, the New York City Council’s amendments to the City’s existing ESSTA took effect. The amendments were largely adopted to align ESSTA with the New York State Paid Sick Leave (“NYPSL”) Law, which also took effect on September 30. Despite similarities between the two laws, there are distinctions and New York City employers need to ensure compliance with both ESSTA and the NYPSL law.[1]

ESSTA’s unique requirements include an employer’s notice and posting obligations. On October 27, 2020, the New York City Department of Consumer and Worker Protection (the “Department”) published the English version of the ESSTA model Safe and Sick Leave Notice. Here are highlights of employers’ corresponding obligations:

• Notice Requirement: Employers are required to provide written notice of employees’ safe and sick time rights to each newly hired employee at the commencement of employment. In addition and notably, the amended ordinance states that “for employees who were already employed prior to the effective dates of provisions of this chapter establishing their right to safe/sick time, such notice shall be provided within thirty days of the effective date of the local law that established each such right” (emphasis added) — i.e., by October 30, 2020, which is 30 days after the amended ESSTA’s September 30 effective date. However, the NYC ESSTA Paid Safe and Sick Leave: Notice of Employee Rights website, an instructive but non-binding source of administrative guidance, states that under the new amendments, the following employers must provide an updated notice of rights to employees by January 1, 2021: (1) Employers with 100 or more employees; and (2) Employers of domestic workers. It is unclear if employers of less than 100 employees will be held to the October 30 deadline based on the publication date of the notice.[2]

The ESSTA notice must be provided in English and the primary language spoken by that employee, provided that the Department has made available a translation of the notice in such language. Currently, the model notice is only available in English. The City’s ESSTA website, however, notes that it is working on translating the notice to additional languages.

• Posting Requirement: Employers must conspicuously post the written notice of employee’s safe and sick time rights under the amended ESSTA at their place of business in an area accessible to employees. This is a new requirement under the amended ordinance. It is unclear at this time if posting the ESSTA model notice in English is sufficient or if employers also will need to post the notice in other languages.[3]
• Available Sick Time Balance Requirement: Employers are also required to notify employees of certain safe and sick leave balance information. Specifically, the amended ESSTA provides that (1) sick and safe leave accrued during a pay period, (2) sick and safe leave used during a pay period, and (3) total balance of sick and safe leave must be included on employees’ paystubs or in a separate writing provided each pay period.  The city’s ESSTA website, which is instructive and non-binding, notes that for this requirement only, employers that could not operationalize the documentation requirement by September 30, 2020 but are working in good faith on implementation will have up to November 30, 2020 to ensure compliance without a penalty.

As a reminder, under the amended ESSTA employers must permit employees to accrue 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) up to 56 hours per year for employers with 100 or more employees.  hese ESSTA accrual caps conform with the NYPSL law.  It is unclear, however, whether an employer can set a year-end carryover cap for leave under ESSTA and the NYPSL law.  The NYPSL law contains no year-end carryover cap for earned, unused sick leave at this time.  Although the amended ESSTA provides that employers can limit the amount of sick and safe time an employee can carry over at year-end to 56 hours, the updated model notice states that employees “can carry over unused safe and sick leave to the next calendar year” without providing a cap. In addition, the NYPSL standard, if ultimately more generous than the City’s carryover standard, would govern year-end carryover of unused sick and safe leave in the city. Regardless of carryover balances, employees need not be permitted to use more than 40 or 56 hours of safe and sick leave per year, depending on employer size.[4]

Eligible employees can use ESSTA leave for (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 Update.

New York State and City employers should continue to monitor the State and City sick leave websites for additional guidance on their respective recent sick leave developments, as well as potential regulations.

With the paid leave landscape continuing to expand and grow in complexity, companies should 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 Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to sickleave@seyfarth.com.

 

[1] Earlier this month, a NYPSL website and set of FAQs were released by the State. Click here for our Legal Update on these developments.

[2] The ESSTA Rules, which have not been updated since the amended ordinance went into effect on September 30, state that the model notice must be provided by a method that reasonably ensures personal receipt by the employee.

[3] The ESSTA Rules, which as noted above have not been updated since September 30, state the following about notice and posting — “For any notice created by the Office that is made available on the City's website and that is then required by a provision of the OLPS laws and rules to be provided to an employee or posted in the workplace, an employer must provide and/or post such notice in English and in any language spoken as a primary language by at least five percent of employees at the employer's location, provided that the Director has made the notice available in such language.”

[4] As a reminder, the increased 56-hour annual usage cap under ESSTA does not begin until January 1, 2021. Similarly, employers are not required to allow employees to use their earned NYPSL until January 1, 2021.