NYC Updates Earned Safe and Sick Time Act
Yesterday, Mayor De Blasio signed legislation amending the Earned Safe and Sick Time Act (“ESSTA”) to align ESSTA more closely with New York State’s Paid Sick Leave law, which is set to go into effect on September 30, 2020. Specifically, the amendments provide the following:
The requirement that an employee work 80 hours in a calendar year to be eligible for safe/sick leave is removed.
Employers of four or fewer employees who have a net income of one million dollars or more during the previous tax year are required to provide paid safe/sick leave of up to 40 hours per calendar year, whereas these employers were previously excluded from ESSTA’s paid leave requirements.
Employers with 100 or more employees are required to provide up to 56 hours of safe/sick time per calendar year instead of 40. Carry over and yearly use limitations are similarly adjusted.
There is no longer a waiting period for safe/sick time, which may be utilized as it is accrued. However, employers may delay use of sick/safe time accrued under the “new” requirements (e.g., additional time over 40 hours for employers of 100 or more, or paid time for those with four or fewer employees and with one million dollars in revenue) until January 1, 2021.
Domestic violence is explicitly added as a basis for safe leave.
The definition of “domestic worker” is clarified to explicitly apply to “any 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.” Additionally, the two days of rest provided to domestic workers under the labor law are no longer considered as part of the safe/sick time calculation, and domestic workers accrue safe/sick time in the same manner as other employees.
Employers who request documentation following an absence of more than three consecutive work days for sick or safe time must pay for any fees charged by the health care provider for sick time and for all reasonable costs or expenses for the purpose of obtaining safe leave documentation.
The definition of retaliation is expanded to include threats, intimidation, discipline, discharge, demotion, suspension, harassment, discrimination, reduction in hours or pay, informing another employer of an employee’s exercise of rights under the law, blacklisting, and maintaining an absence control policy that counts protected safe/sick time as an absence that may result in an adverse action. Adverse actions also explicitly include actions related to perceived immigration status or work authorization. Employees do not need to specifically reference ESSTA to be protected from adverse action. Additionally, the amendments clarify that retaliation can be established when protected activity was a “motivating factor” for the adverse action, regardless of whether other factors also motivated the adverse action.
The ESSTA notice now must be posted in the employer’s workplace, in addition to being distributed upon hire. Current employees who “were already employed prior to the effective dates of provisions of this chapter establishing their right to safe/sick time” must receive notice within 30 days of the law’s effective date. It is not entirely clear whether this applies only to employees who had not received paid sick time at all, or also to employees who are receiving additional paid time (e.g., employees working for employers with 100 or more employees).
The amount of safe/sick time accrued and used during a pay period and an employee’s total balance of safe/sick time must be noted on the employee’s pay stub, or other written documentation, each pay period.
The Department of Consumer and Worker Protection may investigate complaints on its own initiative, as well as upon receipt of an employee’s complaint. Notably, the amendments remove the requirement that the Department will attempt to resolve purported violations through mediation and shortens the employer’s time to respond to a complaint from 30 to 14 days. Employers who are found to have an official or unofficial policy or practice of not providing safe/sick time or refusing the use of such time will be liable for damages in the amount of $500 per employee. The amendments also mandate that the civil penalties imposed for violations of ESSTA are calculated on a “per employee basis”, but are not clear as to whether that is per employee involved in the violation or based on all individuals employed by an employer. Corporation counsel is also granted the right to initiate proceedings in court for enforcement purposes, including injunctions, and to bring civil actions for pattern or practice violations. In addition to the $500 per employee damages noted above, civil actions may result in a penalty of up to $15,000 for an unlawful pattern or practice.
These amendments go into effect on September 30, 2020. New York State is also expected to issue further guidance on the State Paid Sick Leave Law in the form of regulations and FAQs which may require further amendments to employer policies; however, no guidance has yet been released.
Employers should review and revise their sick time policies and notice requirements in light of these adjustments to ESSTA and upon further guidance from the State. Employees who have questions about the ESSTA amendments or need assistance in revising their policies should contact Kristina Grimshaw at kgrimshaw@fglawllc.com, or any other attorney at the firm.
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