Expanded NYC Earned Safe and Sick Leave Law imposes additional obligations on employers

Earlier this year, New York State passed its Paid Sick Leave Law (NYSPSLL), which took effect on September 30, 2020 and allows eligible employees to use sick leave beginning in January 2021. In response, New York City amended its Earned Safe and Sick Leave Law (NYCESSLL) to mirror the new, more generous statewide requirements, as well as impose additional requirements on employers in New York City. These amendments were signed into law by Mayor Bill DeBlasio on September 28, 2020 and took effect alongside the NYSPSLL on September 30, 2020.

Employers with employees in New York City are urged to familiarize themselves and ensure compliance with the new statewide and New York City-specific leave requirements outlined below.

Obligations under both NYSPSLL and NYCESSLL

Employee accrual of leave

Under both statutes, employees accrue safe and sick leave at a rate not less than 1 hour of leave time for every 30 hours worked. In addition, employer coverage requirements and corresponding tiers of safe and sick leave benefits outlined below are consistent across New York State:

For employers in New York City with 100 or more employees, this expands the amount of leave required – from 40 hours to 56 hours. The amended NYCESSLL also expands the scope of covered employers, which previously provided that employers with fewer than 5 employees were only required to provide up to 40 hours of unpaid safe and sick leave, regardless of the business’s net income in the previous year.

Employee eligibility requirements

Under the NYSPSLL and amended NYCESSLL, new hires can begin to use leave immediately (i) for the care and treatment of themselves or a family member; (ii) to seek assistance or take other safety measures if the employee or a family member may be the victim of any act or threat of domestic violence, unwanted sexual contact, stalking, or human trafficking; (iii) to care for a child whose school or child care provider closed due to a public health emergency (NYCESSLL only); or (iv) because of the closure of the employee’s place of business due to a public health emergency (NYCESSLL only).

Previously, under the NYCESSLL, employers could require newly hired employees to work for 120 days before using accrued leave. That said, while accruals under the NYSPSLL and the amended NYCESSLL begin as of September 30, 2020, employees are not entitled to use any new leave provided for under the NYSPSLL and amended NYCESSLL until January 1, 2021. In other words, until January 1, 2021, (a) employers with 100 or more employees are not required to allow employees to use leave beyond 40 hours, and (b) employers with fewer than 5 employees and net income of $1 million or more in the previous year are not required to provide paid leave.

Additionally, all employees are entitled to accrue safe and sick leave, regardless of part-time, temporary or seasonal status. Previously, the NYCESSLL had provided that employees could only accrue leave time if they had worked more than 80 hours in a calendar year.

Additional requirements for New York City employers

The NYCESSLL was further amended as follows:

• Reimbursement for documentation: Employers must reimburse employees for any costs incurred in obtaining written documentation confirming that the use of safe and sick leave was for an authorized purpose. The NYCESSLL permits an employer to require such documentation after more than three days of consecutive absence.
• Employer reporting requirements: On each paystub or other “written documentation” each pay period, employers must include (i) the amount of sick and safe leave accrued and used during the pay period and (ii) the employee’s total balance of accrued safe and sick leave. Employers may be subject to a civil penalty of up to $50 for each employee who was not given appropriate notice.
• Notice requirements: Employers are required to post a notice of rights under the NYCESSLL in the worksite and provide current employees with an updated notice of rights under the NYCESSLL by October 30, 2020. Employers also must continue to provide new employees with a notice of rights at the time of hire.
• Expanded scope of prohibited retaliation: The amendments to the NYCESSLL expand the scope of prohibited retaliation to include any adverse action against an employee that penalizes an employee for, or is reasonably likely to deter an employee from, exercising or attempting to exercise their rights under the NYCESSLL. In addition, employees (i) are not required to explicitly reference the NYCESSLL to be protected from retaliation and (ii) are protected from retaliation when they mistakenly, but in good faith, assert their rights under the NYCESSLL. Lastly, the amendments to the NYCESSLL clarify that a violation of the retaliation provision can be established, by direct or indirect evidence, when it is shown that protected activity was a motivating factor for an adverse action, whether or not other factors motivated the adverse action as well.
• Expanded enforcement mechanisms and penalties: The amendments to the NYCESSLL expand the Corporation Counsel of the City of New York’s investigatory and enforcement powers. In addition, employers found to have engaged in a pattern or practice of violating the NYCESSLL may be subject to civil penalties of up to $15,000 and may also be ordered to pay up to $500 in penalties to each employee who was denied leave under the NYCESSLL.

If you have questions about the NYCESSLL or other employment issues, please contact any member of the DLA Piper Employment group or your DLA Piper relationship attorney.

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This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.