NYC Unveils Proposed Rules for Updated Earned Safe and Sick Time Act

Quick Hits

• The DCWP has released proposed rules to implement the recent amendments to New York City’s ESSTA.
• The ESSTA amendments included the addition of thirty-two unpaid leave hours, expansion of ESSTA reasons, new pay statement documentation requirements, and modification of potential penalties.
• Employers and other stakeholders may submit comments to the DCWP. A public hearing on the proposed rules is scheduled for March 2, 2026, at 11:00 a.m. EST.

Recent Amendments to the ESSTA

The recent amendments aligned the ESSTA with New York City’s Temporary Schedule Change Law, expanding the circumstances under which employees may take protected time off. Those circumstances now include:

• caring for a child or for a member of an employee’s household with a disability;
• attending legal proceedings related to benefits for an individual under an employee’s care;
• the closure of an employee’s place of business or a child’s school or place of care due to a public disaster;
• government directives to avoid travel or stay indoors during a public disaster;
• seeking legal services or assistance if an employee or a family member is a victim of workplace violence; and
• other reasons that would qualify for safe/sick time under the ESSTA.

Further, the amendments provide employees with a separate bank of thirty-two hours of unpaid protected time off, available immediately upon hire, in addition to the forty or fifty-six hours, depending on employer size, already mandated under the ESSTA.

The Proposed Changes to the Rules

The proposed rules would amend Section 20-912 of the New York City’s Administrative Code to refer to “protected time off,” a term that would be defined in the same way as “safe/sick time” under Section 20-912, which includes both paid and unpaid time off for various authorized reasons. The proposed rules would incorporate the additional authorized uses of protected time off and the requirement to provide an immediate bank of thirty-two hours of unpaid protected time off.

Additionally, the proposed rules would clarify employer recordkeeping requirements, specifying that employers must track by pay period the following: the amount of protected time off accrued and used by each employee, differentiating between paid and unpaid protected time off; each employee’s balance of accrued protected time off; and the amount of paid and unpaid prenatal leave used. Employers would be required to display similar information on employees’ pay statements.

The proposed rules would also adjust the penalties for failure to provide paid prenatal leave, by clarifying that, when an “employer, as a matter of official or unofficial policy or practice, does not provide or refuses to allow the use of paid prenatal leave,” the “relief granted to each and every employee affected … must include (1) application of 20 hours of paid prenatal leave to the employee’s paid prenatal leave balance; and (2) monetary relief in the amount of $500 per employee per calendar year the policy or practice was in effect.”

Next Steps

While the proposed rules do not significantly modify the amended ESSTA’s obligations, they are likely to create additional recordkeeping and pay statement requirements and alter potential penalties. The proposed rules would also provide updated compliance guidance for employers.

A public hearing on the proposed rules will be held on March 2, 2026, at 11:00 a.m. EST, and will be accessible by phone and videoconference. Comments on the proposed rules can be submitted to the DCWP through New York City’s rules website (NYC Rules), by email, or by speaking at the hearing.

Employers in New York City or with employees in New York City may wish to review and revise relevant leave-related policies and procedures to reflect the ESSTA amendments, which include providing a separate bank of unpaid protected time off upon hire and at the beginning of each year, and adding the new reasons for protected time off. Employers may also wish to educate and train supervisors and human resources professionals on these changes to ensure their compliance, as well as update existing practices to align with the above requirements. In addition, employers may wish to take steps to prepare for the new recordkeeping requirements ahead of their February 22, 2026, effective date.

Ogletree Deakins’ New York office and Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Leaves of Absence and New York blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on New York City’s ESSTA requirements. Premium-level subscribers have access to updated policy templates for New York. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

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