United States: If Pain (Or Anything Else), Yes Gain—Part 67: New York City Council Considers Mandatory Paid Personal Time

Seyfarth Synopsis: Since the enactment of New York City's original Earned Sick Time Act ("ESTA") in 2014, the City's employers have dealt with a seemingly steady stream of updates expanding the law's scope. In addition to the recent expansion requiring employers to provide safe time, the New York City Council is considering amending the current sick/safe time law yet again to add a mandatory paid personal time component.

In its early years, ESTA allowed eligible employees to accrue up to 40 hours of paid sick time ("PST") annually. In late 2017, the law was amended to allow employees to use their accrued PST for safe time reasons in instances where the employee or a covered family member was a victim of a family offense, sexual offense, stalking, or human trafficking, in addition to sick time reasons. The amended law, now called the Earned Safe and Sick Time Act ("ESSTA"), went into effect in May 2018 and, among other things, also broadened the definition of a covered "family member," which applies to both the sick and safe time components.1

In what would be a trailblazing step for municipalities in the country, the New York City Council is now considering another significant amendment to its paid safe and sick time law, namely by introducing a mandatory personal time element. The proposal, called Int. No. 800-A ("the Bill"), would impose even greater substantive burdens on employers, by among other things, allowing covered employees to accrue one hour of personal time for every 30 hours worked, up to 80 hours of personal time per calendar year. These 80 hours would be available for employees to use for any reason and, as the Bill currently stands, would be in addition to the 40 hours of sick/safe time provided to eligible employees. As amended, the law would be called the "Earned Safe, Sick and Personal Time Law" ("ESSPTL").

On May 28, 2019, the New York City Council held a hearing on Int. No. 800-A. Business advocates voiced concerns regarding the Bill's burdens on small businesses. Further, council members questioned whether the coverage threshold for employers, which as proposed provides that the paid personal time component would apply to any business with five or more employees (covered employers with fewer employees would be obligated to provide unpaid personal time), would unduly burden small businesses.

New York City Mayor Bill de Blasio has expressed support for the Bill, but its future remains uncertain. If enacted, the Bill would take effect 120 days after becoming law.

Here are some highlights of the proposed Bill:

  • Employee Eligibility: As under ESSTA, the ESSPTL, broadly defines "employee" to include any person employed for hire by an employer in any employment within New York City for more than 80 hours in a calendar year.
  • Covered Employer: As under ESSTA, the ESSPTL, broadly defines "employer" to include any person or entity employing any individual. Employer, however, does not include governmental agencies or certain other public entities.
  • Start of Accrual and Usage Waiting Period: Under the ESSPTL, personal time would begin to accrue at the law's effective date (assuming it is enacted) or commencement of employment, whichever is later. Eligible employees would not be entitled to begin using personal time until the later of the 90th calendar day after (a) the law's effective date (assuming it is enacted) or (b) the employee's commencement of employment.
  • Accrual Rate and Cap: Under the ESSPTL, eligible employees would accrue one hour of paid personal time for every 30 hours worked, up to 80 hours per calendar year. In addition, employees would continue to accrue one hour of paid safe/sick time for every 30 hours worked, up to 40 hours per calendar year.2
  • Usage and Carryover Caps: Eligible employees would be able to carry over up to 40 hours of earned, unused paid safe/sick time and up to 80 hours of earned, unused paid personal time to the following calendar year. An employer would not be required to permit employees to use more than 40 hours of paid safe/sick time or more than 80 hours of paid personal time per year.3
    • Carryover Exception: The Bill notes that to avoid year-end carryover an employer can (1) pay the employee for any unused time at the end of the calendar year in which the time is accrued and (2) provide the employee with an amount of paid time that meets the requirements of the ESSPTL (i.e., 80 hours of personal time and 40 hours of safe/sick time) on the first day of the subsequent calendar year.
  • Reasons for Use: Employees would be able to use accrued personal time for any reason, including the reasons authorized for use of safe/sick time.
  • Use of PTO: Employers would be able to substitute and use other employer-provided paid leave (i.e., paid vacation, paid personal days, PTO, etc.) for compliance if the employer provides employees with the right amount of time off that can be used for the same purposes and under the same conditions as personal time under the Bill.
  • Increments of Use: The Bill notes that employees would be able to determine how much accrued personal time they need to use, except that employers would be able to set a reasonable minimum increment for the use of personal time not to exceed four hours per day.
  • Notice to Employer:
    • Foreseeable Absences: Under the ESSPTL, employers would be able to require reasonable advance notice of the intention to use personal time, not to exceed 14 days prior to the date the leave is expected to begin.
    • Unforeseeable Absences: As with ESSTA, under the ESSPTL, an employer may require notice of unforeseeable uses of paid personal time as soon as practicable.
  • Documentation: Employers would still be able to require reasonable documentation for safe/sick leave for absences of more than 3 consecutive work days as permitted under ESSTA. However, the Bill expressly states that employers will not be able to require documentation for use of personal time.
  • Notice and Posting: Employers would be required to provide notice to employees and display a poster of employees' rights under the law. Specifically, employers would be required to provide each employee with a written copy of the notice at the time of the employee's hiring if hired after the effective date of the ESSPTL, or within 30 days of the law's effective date for current employees.
  • Separation of Employment: The Bill notes that employers are not obligated to reimburse employees for earned, unused paid sick/safe or paid personal time upon separation of employment.

New York City employers should be on the lookout for further developments involving the proposed ESSPTL. We will continue to monitor the Bill and provide updates on developments as they arise.

With the paid sick 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 this law and sick leave requirements generally.

Footnotes

[1] For more information on New York City paid sick and safe time, see our prior alerts here, here, here, here, here, here, here and here.

[2] The Bill currently states the following on accrual: "All employers shall provide a minimum of one hour of safe/sick time and one hour of personal time for every thirty hours worked by an employee, provided that employers shall not be required under this chapter to provide more than a total of forty hours of safe/sick time and a total of eighty hours of personal time for an employee in a calendar year." Proposed Int. No. 800-A, § 20-913(5)(b) (emphasis added) (removing brackets and underlines that appear in the current Bill).

[3] The Bill currently states the following on carryover and usage caps: "Up to forty hours of unused safe/sick time as provided pursuant to this chapter and up to eighty hours of unused personal time as provided pursuant to this chapter shall be carried over to the following calendar year; provided that no employer shall be required to (i) allow the use of more than forty hours of safe/sick time or more than eighty hours of personal time in a calendar year..." Proposed Int. No. 800-A, § 20-913(5)(h) (emphasis added) (removing brackets and underlines that appear in the current Bill).

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Schnader Harrison Segal & Lewis LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Schnader Harrison Segal & Lewis LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions