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New York City Amends the Earned Safe and Sick Time Act

On September 28, 2020, New York City Mayor Bill de Blasio signed a new bill into law that amends the New York City Earned Safe and Sick Time Act (“ESSTA”).  ESSTA has been in effect since 2014, but the new amendments became effective on September 30, 2020.  ESSTA applies to employers with employees within the city of New York.
November 2, 2020
New York City Amends the Earned Safe and Sick Time Act

New York City Amends the Earned Safe and Sick Time Act

On September 28, 2020, New York City Mayor Bill de Blasio signed a new bill into law that amends the New York City Earned Safe and Sick Time Act (“ESSTA”).  ESSTA has been in effect since 2014, but the new amendments (the “Amendments”) became effective on September 30, 2020.  ESSTA applies to employers with employees within the city of New York (“NYC Employees” or “Employees”).

New Written Notice, Posting, and Paystub Display Requirements

Employers are required to provide written notice of the Amendments to current NYC Employees by October 30, 2020.  As a separate requirement, employers must post the notice in an area accessible to Employees by October 30.  And the Amendments additionally require employers to display “on a pay statement or other form of written documentation provided to the employee each pay period” the amount of safe and sick time accrued and used during each pay period as well as the Employee’s total balance of accrued safe and sick time.

Failure to comply with the notice requirements of the Amendments results in a mandatory civil penalty of up to $50 for each Employee who was not given appropriate notice. EP clients can obtain a blank template of the notice from their EP Paymaster.

Increases to Safe and Sick Time Amounts Under ESSTA

The Amendments also require employers to provide an increased amount of safe and sick time to NYC Employees as follows:

  • Employers of four (4) or fewer Employees plus a net income of less than $1 million during the previous tax year must provide Employees with up to 40 hours of unpaid safe and sick time per calendar year.
  • Employers of four (4) or fewer Employees plus a net income of greater than $1 million during the previous tax year must provide each Employee with up to 40 hours of paid safe and sick time per calendar year as of January 1, 2021.
  • Employers of 5-99 Employees must provide each Employee with up to 40 hours of paid safe and sick time per calendar year.
  • Employers of 100+ Employees must increase the amount of paid safe and sick time per calendar year from 40 hours to 56 hours as of January 1, 2021.

Employers that already provide benefits equal to or more generous than the amounts referenced above – to be used for the same reasons prescribed by ESSTA – are not required to provide additional paid safe and sick time pursuant to the Amendments.

And while ESSTA has always required accrual of safe and sick time to begin at the commencement of employment, the Amendments eliminate the original normal 120-day waiting period under ESSTA so that Employees can use safe and sick time as soon as it is accrued.

Employers that violate ESSTA could be liable for at least three times the wages that should have been paid or $250, whichever is greater, for each instance of safe/sick time taken by an employee but unlawfully not compensated by the employer, in addition to other categories of damages for other violations, including for interfering with an Employee’s exercise of his/her rights under ESSTA.  A civil penalty payable to the city of up to $500 for the first violation, up to $750 for subsequent violations that occur within two years of a previous violation, and up to $1,000 for each succeeding violation may additionally be imposed.  And a separate penalty of up to $15,000 may also be imposed if a trier of fact makes a finding that the employer has engaged in a pattern or practice of ESSTA violations.

New Reimbursement Obligation Under ESSTA

The Amendments also impose a new requirement that employers reimburse Employees “[w]here a health care provider charges an employee for the provision of documentation requested by their employer.”  This means that when the employer requests documentation to substantiate the leave, the employer must reimburse the NYC Employee for the health care provider’s charge (if any) for providing such documentation.

ESSTA May Not Apply to Those Covered by a Valid Collective Bargaining Agreement

ESSTA and the Amendments do not apply to Employees who are covered by a valid collective bargaining agreement (CBA) if (1) such provisions are expressly waived in the CBA; and (2) the CBA provides for a comparable benefit for Employees covered by the CBA. “Comparable benefits shall include, but are not limited to, vacation time, personal time, safe/sick time, and holiday and Sunday time pay at premium rates.”

Employers are all advised to consult with their labor and employment counsel to determine how and whether New York City’s amended ESSTA impacts your workforce.

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For any questions about this Alert, you may contact:

Pantea Lili Ahmadi, Senior Corporate & Employment Counsel | pahmadi@ep.com

Alan Wu, Director/Labor Relations Counsel  |  awu@ep.com

Joe Scudiero, Senior Vice President & Chief Labor Counsel | jscudiero@ep.com

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