United States: Amended Rules Issued Under NYC Earned Safe And Sick Time Act

In follow up to recent amendments to the New York City Earned Safe and Sick Time Act ("ESSTA"), the NYC Department of Consumer Affairs Office of Labor Policy and Standards ("OLPS") has amended its official rules, several of which expand upon currently existing rules regarding ESSTA. The OLPS has also issued an updated ESSTA FAQ for use by employers, which incorporates the requirements of the amended rules. The amended rules are now in effect.

ESSTA, which became effective on April 1, 2014, requires covered employers to provide eligible employees in New York City with up to 40 hours of leave per year for certain designated reasons, including an employee's own medical needs or those of a covered family member. As of May 5, 2018, the covered reasons for leave were expanded to include time needed for certain reasons relating to an employee or a family member being the victim of domestic violence, sexual offenses, stalking or human trafficking ("safe time"). The definition of a covered family member was also expanded to now include any individual related by blood to the employee, or any individual whose close association with the employee is the equivalent of a family relationship.

The following are some highlights of the recently amended OLPS rules regarding ESSTA:

Written Policy Requirements

The amended rules clarify that employers may not rely upon the required Notice of Employee Rights to satisfy its obligation under the law to maintain a written ESSTA policy. While the Notice of Employee Rights must still be distributed to new employees upon hire, employers also must maintain a separate written policy that must be distributed to all employees:

  • upon commencement of employment;
  • within 14 days of the effective date of any changes to the policy; and/or
  • upon request by the employee.

Further, simply posting a copy of the employer's written policy will no longer suffice to satisfy the "distribution" requirement – rather, distribution must occur personally to each employee, either in hard copy form or via electronic means, such as email.

The amended rules further state that an employer's written ESSTA policy must be "in a single writing." While neither the rules nor the updated FAQ further elaborate on this requirement, it appears to suggest that employers that may maintain a sick leave policy (or PTO or other policy) along with a separate ESSTA supplement should ensure that all such information is contained in a single document distributed simultaneously to covered employees.

The amended rules also expand upon the required elements of a compliant written ESSTA policy. First, in addition to addressing information such as whether earned sick and safe leave will be accrued or frontloaded, minimum usage increments, and employee notice and verification requirements, the amended rules now require that an employer's written policy must include "a description of the confidentiality requirements of Section 20-921" of ESSTA. Section 20-921 states that "[n]o person or entity may require the disclosure of details relating to an employee's or his or her family member's medical condition as a condition of providing sick time under [ESSTA]," and that "[h]ealth information about an employee or an employee's family member obtained solely for the purposes of utilizing sick time pursuant to [ESSTA] shall be treated as confidential and shall not be disclosed except by the affected employee, with the permission of the affected employee or as required by law." As further explained in the updated FAQ, the written policy must extend similar confidentiality requirements to the details of the matter for which an employee requests safe leave under ESSTA.

Additionally, the amended rules provide that if an employer uses a term other than "safe/sick time" or "safe and sick time" to describe leave that is provided to satisfy ESSTA's requirements (for example, "paid time off/PTO," "vacation time," "personal days," etc.), the written policy must expressly state that such leave may be used by an employee for any covered purpose under ESSTA and without any condition otherwise prohibited by ESSTA.

Updated Definitions

The amended rules also update and expand upon the definition of certain terms used under ESSTA, including with regard to domestic workers and joint employment relationships.

Under ESSTA, employers with one or more domestic workers who have worked for the employer for at least a year and who work more than 80 hours a calendar year must provide such employees with paid safe and sick leave in accordance with the law. The amended rules clarify that a "domestic worker" under ESSTA is limited to "a person who provides care for a child, companionship for a sick, convalescing or elderly person, housekeeping, or any other domestic service in a home or residence whenever such person is directly and solely employed to provide such service by an individual or private household." The term "domestic worker" does not include "any person who is employed by an agency whenever such person provides services as an employee of such agency, regardless of whether such person is jointly employed by an individual or private household in the provision of such services."

The amended rules further clarify a number of issues relating to joint employment for purposes of ESSTA, including how joint employment is defined for purposes of the law and how joint employers may allocate responsibility for complying with ESSTA's requirements.

Employers are encouraged to review their current ESSTA policies and practices to ensure compliance with the amended rules. As always, we will continue to monitor developments in this area.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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