The New York City Department of Consumer and Worker Protection (DCWP) has announced proposed amendments to the rules governing the Earned Safe and Sick Time Act (ESSTA). These changes aim to align regulatory language with recent statutory expansions related to paid prenatal leave; the addition of a separate 32 hour bank of time and provide clearer guidance for employer compliance.
Expanding “Protected Time Off”
A central theme of the proposed rules is the introduction and definition of “protected time off,” which serves as an umbrella term for safe and sick time. The proposal formally incorporates several new authorized reasons for employees to use this time:
- Expanded Caregiving and Legal Needs. Employees may use protected time to care for a child or care recipient. It also covers time needed to attend legal proceedings or take actions related to housing or subsistence benefits.
- Safety and Disaster Response. The rules now explicitly include time off to respond to a public disaster or workplace violence.
- Prenatal Leave Integration. The proposal codifies paid prenatal leave requirements into the Administrative Code, ensuring 20 hours of paid leave is available for pregnancy-related healthcare services.
The 32-Hour “Immediately Available” Requirement
Perhaps the most significant change for employers is the new requirement to provide 32 hours of unpaid protected time off that is immediately available.
- Availability. This bank of 32 hours must be provided on an employee’s first day of work and on the first day of every subsequent calendar year.
- Usage Order. If an employee has both paid and unpaid protected time off available, the employer must generally provide paid time first to cover an absence, unless the employee specifically requests to use the unpaid bank instead.
- Equivalent Paid Time. Employers may fulfill this obligation by providing an equivalent amount of paid protected time off, provided it is also immediately available at the start of employment and each calendar year.
Updated Recordkeeping and Notice Obligations
To ensure transparency and enforcement, the proposed rules update documentation and pay statement requirements:
- Pay Statements. Employers must now differentiate between paid and unpaid protected time off on pay statements or other written documentation provided each pay period. This includes showing the total balance of both types of time available for use.
- Written Policies. All sick and safe time and prenatal leave policies must be maintained in a single policy and distributed to employees upon hire and within 14 days of any policy changes.
- Reasonable Documentation. For absences exceeding three consecutive workdays, employers can require documentation, but they must reimburse employees for any fees charged by healthcare providers to obtain such records.
Updated Notice and Frequently Asked Questions
The DCWP has published an updated notice (Notice of Employee Rights: Protected Time Off) which employers must post in and provide to all newly hired employees. The notice must be posted and provided in English and if available in the employee’s primary language.
DCWP has also updated its frequently asked questions (FAQs) to include guidance on the changes to ESSTA.
Next Steps for Employers
While these rules are currently in the proposal stage, NYC employers should prepare for these shifts in the compliance landscape:
- Post and Provide the Updated Notice: Download the updated notice from the DCWP’s website and ensure it is posted in a prominent location at the workplace. Also update your onboarding process to ensure the applicable notice is provided to all new employees.
- Review Leave Banks: Assess how your current accrual or frontloading systems will accommodate the 32 hours of immediately available time.
- Update Written Policies: Begin drafting updates to employee handbooks to reflect the expanded list of authorized reasons for leave and the new “protected time off” terminology.
- Align with Payroll: Ensure your payroll systems or providers are prepared to track and display paid and unpaid protected time off balances separately on pay stubs.
