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ATTENTION NYC EMPLOYERS
New Sick Time Rules Have "Kicked-In"
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The New York City Department of Consumer Affairs ("DCA") recently adopted amendments to its administrative rules interpreting New York City's Earned Sick Time Act (the "ESTA" or the "Act"), effective March 4, 2016.
IMPORTANT - THE DCA IS ENFORCING THESE NEW RULES
Some of our clients have already received investigation notices from the DCA. The DCA is requiring the production of a voluminous amount of information in specific formats in a short period of time. If you receive such a notice, we strongly recommend that you work with outside counsel to prepare a response and interface with the DCA.
Read More on the Key Revisions Below:
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What Should Employers Do to Prepare?
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New York City employers should review their sick and paid time off policies and implement the additional steps needed to comply with the amended rules.
Questions?
If you have any questions about the amendments to the administrative rules interpreting New York City's Earned Sick Time Act, or need assistance analyzing how the changes may impact your business, please contact
Katherin Nukk-Freeman
or the Nukk-Freeman & Cerra, P.C. attorney with whom you normally work.
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 Written Sick Time Policies:
The amendments provide that an employer's mandatory written sick time policy must include the following:
- The employer's methods for calculating sick time;
- Requirements for employee notice of the need to use sick time (if sick time is not foreseeable, an employer cannot require in its policy that an employee appear in person at a worksite or deliver any document to the employer prior to using sick time);
- Requirements for providing written documentation or verification for the use of sick time as well as the consequences for an employee's failure or delay in providing same;
- Minimum increments of sick time to be used or fixed periods for the use of accrued sick time;
- Any policy on discipline for employee misuse of sick time; and
- The employer's policy regarding carry-over of unused sick time at the end of an employer's calendar year.
In addition, the amendments provide that an employer who fails to distribute a copy of its sick time policy to an employee shall not be able to deny sick time or payment of sick time to that employee for the employee's failure to comply with the policy.
Clarification on Employee Discipline for Abuse of Sick Time Policies: The amendments provide that employers may take disciplinary action, up to and including termination, against employees who abuse sick leave. The amendments specifically define "abuse" to include:
- Use of unscheduled sick time on or adjacent to weekends, regularly scheduled days off, holidays, vacation or paydays;
- Taking scheduled sick time on days when other types of leave have already been denied; and
- Taking sick time on days when the employee is scheduled to work a shift or perform duties perceived as undesirable.
Minimum Increments and Fixed Intervals for the Use of Sick Time: Employers can establish minimum increments for the use of sick time that cannot exceed four hours. Under the amended rules, an employer can also "set fixed periods of thirty minutes or any smaller amount of time for the use of accrued sick time beyond the minimum increment," and "require fixed start times for such intervals."
Clarification on the Accrual and Hours Worked Calculations for Certain Employees:
The amendments provide clarification on the accrual and hours worked calculations for certain employees, such as employees who work on an on-call shift, on a piecework or commission basis, or for indeterminate shift lengths.
Recordkeeping Obligations: The amendments list several records that employers must maintain for a period of three years, including:
- The employee's name, address, phone number, date(s) of start of employment, date(s) of end of employment (if any), rate of pay, and whether the employee is exempt from overtime;
- The hours worked each week by the employee, unless the employee is exempt from overtime and has a regular work week of forty hours or more;
- The date and time of each use of sick leave and the amount paid for such leave;
- Any changes in the material terms of an employee's employment; and
- The date the Notice of Rights required by ESTA was provided to the employee and proof that same was received by the employee.
The amendments further provide that an employer's failure to maintain, retain or produce any of the records above that are relevant to a "material fact" in a notice of hearing issued to the employer "creates a reasonable inference that such fact is true."
Penalties: The DCA has clarified the potential penalties against employers for non-compliance with certain provisions of ESTA:
- Penalties will be imposed on a per-employee basis. If an employer, as a matter of policy or practice, does not allow accrual of sick time as required under the ESTA, the relief granted to each and every employee affected by the policy or practice must include either: (1) placing 40 hours of sick time to the employee's sick time balance, or (2) if known, placing the number of hours of sick time the employee should have accrued (to a maximum of 80 hours) to the employee's sick time balance; and
- An employer who fails to respond to a notice of violation issued by the DCA on or before the hearing date is subject to a penalty of $500, in addition to any penalties or remedies imposed as result of the complaint.
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What Should Employers Do to Prepare?
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New York City employers should review their sick and paid time off policies and implement the additional steps needed to comply with the amended rules.
Questions?
If you have any questions about the amendments to the administrative rules interpreting New York City's Earned Sick Time Act, or need assistance analyzing how the changes may impact your business, please contact
Katherin Nukk-Freeman
or the Nukk-Freeman & Cerra, P.C. attorney with whom you normally work.
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