New York City Publishes Updated FAQs for Earned Safe and Sick Time Act

Quick Hits

• On September 26, 2024, New York City released updated FAQs for the Earned Safe and Sick Time Act (ESSTA) to address the October 2023 amended rules and the January 2024 law allowing private rights of action for ESSTA violations.
• The updated FAQs clarify and provide guidance regarding the amended rules, processes, and procedures in pursuing a private right of action, while also leaving some questions unanswered.
• The updated FAQs provide guidance on additional topics regarding written safe and sick leave policies and additional uses of leave for weather-related health conditions and funerals.

Telecommuting and Remote Employees

With the advent of remote work and telecommuting, the amended rules clarify that an employee who is based outside of New York City is eligible to use safe and sick leave if the employee is “expected to regularly perform work in New York City during a calendar year” but only hours worked by such an employee in New York City will count toward the accrual of safe and sick leave. Additionally, the employee can only use accrued safe and sick leave while performing work in New York City.

While the amended rules provide some examples of how this will apply, the FAQs leave unanswered what “regularly perform work” means for purposes of determining eligibility.

Written Safe and Sick Leave Policies

For employers that have general paid time off policies, the FAQs clarify that employers must maintain written safe and sick leave policies in a single writing. Policies are not in a single writing “if they are split up across multiple documents or locations. An employer may supplement a national policy with an NYC-specific policy, provided that the national and local policies are not confusing or contradictory.”

Despite this guidance, the FAQs do not expound on the meaning of “confusing or contradictory.”

DCWP Investigations and Private Right of Action

As employees can now file a civil action in court and file a complaint with the DCWP, the FAQs provide guidance regarding those processes and procedures. As an initial matter, the FAQs clarify that there are no prerequisites to filing a lawsuit in court for ESSTA violations, and are not required to file a complaint with the DCWP first. Should an employee decide to file complaints in court and with the DCWP for the same alleged violations, the DCWP will stay its investigation until it is notified that “such a civil action has been withdrawn or dismissed without prejudice.” After a final judgment or settlement, the DCWP will then dismiss the complaint unless it “determines the complaint alleges a violation not resolved by such judgment or settlement.”

Additional Uses: Health Conditions Related to Weather Events and Funerals

The FAQs provide that employees may be able to use safe and sick leave for weather-related events, when, for example, weather-related conditions impact the health of employees or their family members such as extreme heat or poor air quality or if exposure to certain weather would pose a risk to the employee or family member due to an underlying medical condition.

In addition, the FAQs state that an employee may use safe and sick leave to attend a funeral if an employee is experiencing anxiety or depression or if a family member needs care for a mental or physical health condition.

Exhausting Available Safe and Sick Leave

Under the ESSTA, generally, it is the employee who decides whether to use safe and sick leave and how much accrued safe and sick leave to use. In reaffirming this rule, the FAQs provide that employers are “prohibited from deducting from an employee’s leave bank when the employee does not wish to use safe and sick leave to cover an absence.” Notwithstanding, the FAQs clarify that the ESSTA “does not require an employer to provide unpaid time off when an employee does not wish to use safe and sick leave to cover an absence and is not eligible for other paid leave.” However, the FAQs note that other laws may require an employer to grant unpaid time off.

Pay Statement Requirements and Unlimited Paid Time Off

The ESSTA requires employers to inform employees on their paystubs of the amount of safe and sick leave used during the pay period and the balance of accrued time remaining.

For those employers that offer unlimited safe and sick leave or unlimited paid time off, the FAQs state that “in very limited circumstances,” an employer will not be required to provide documentation showing accrual, use, and balance information each pay period. Whether this exception applies will depend on “the nature of the employer’s written safe and sick leave policy, including whether any restrictions apply, and whether in practice leave is truly unlimited.”

Even if an exception applies, the FAQs clarify that employers must still keep records showing compliance with the ESSTA.

Next Steps

Employers based in or with remote employees in New York City may wish to review their current policies and make any necessary revisions based on the updated FAQs. Employers may also want to review with and train supervisors and human resources professionals to ensure compliance and update existing practices to align with the above updates to minimize the potential for enforcement actions by the DCWP or for lawsuits by employees.

Ogletree Deakins’ New York office will continue to monitor developments and will provide updates on the Leaves of Absence and New York blogs.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts