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As previously advised, the amendments to the New York City Earned Safe and Sick Time Act (ESSTA) are now in effect. The New York City Department of Consumer and Workforce Protection (DCWP) has now published updated FAQs explaining the additional protections and guidance. The DCWP has also issued a new Notice of Employee Rights and model forms for requesting and confirming legitimate use of paid safe/sick time, unpaid safe/sick time and paid prenatal leave.
FAQs
The highlights of the updated FAQs are as follows:
- New York City is now using the terminology “Protected Time Off Law” to refer to the ESSTA, and using the term “protected time off” in lieu of “paid safe/sick time” and “unpaid safe/sick time” or “safe and sick leave.”
- Employers may continue to use the term “safe/sick time” or “safe and sick leave” in their time off policies at their election, but should make clear that both paid safe/sick time and unpaid safe/sick time are considered “protected time off” under New York City law.
- Employers that have a “Paid Time Off” or “PTO” policy, must include a statement in the policy that the time off may be used for all purposes and without any conditions prohibited by the ESSTA/Protected Time Off Law.
- Though the ESSTA/Protected Time Off Law still categorizes reasons to use protected time off as “sick” and “safe” reasons, the DCWP guidance now uses the dichotomy of “health” reasons and “other protected” reasons or needs.
- Employees can use protected time off in the event of a declared “state of emergency,” particularly due to severe weather-related events, expanding on the term “public disaster.”
- Additionally, employees can use protected time off to care for themselves or a family member if exposure to certain weather would pose a risk to the employee or their family member due to an underlying medical condition.
- The use of protected time off to care for the employee’s minor child or care recipient is boundless, and specifically includes school holidays or due to unexpected issues like day care closures (regardless of the reason for closure) and babysitter cancellations.
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Employers who provide employees with at least 32 hours more than the required 40 or 56 hours of safe/sick time or PTO are not required to provide an additional 32 hours of unpaid protected time off, so long as the employer frontloads as least 32 hours of paid time off immediately upon hire and the first day of each calendar year.
- For employers covered by a collective bargaining agreement (CBA) that expressly waives the ESSTA provisions but provides a comparable paid time off benefit, those benefits must now be expanded to (i) include an additional 32 hours of immediately-available hours of time off work (either paid or unpaid); (ii) allow use of paid or unpaid time off for all reasons protected by the ESSTA/Protected Time Off Law, including family care; and (iii) ensure no employee is subject to discipline, including use of point systems, for using protected time off.
Though not a new provision of the FAQs, if the CBA does not expressly waive the ESSTA provisions, the ESSTA/Protected Time Off Law applies to all employees, including union members.
Notice of Employee Rights
The DCWP has also released a revised Notice of Employee Rights: Protected Time Off (“Notice of Rights”), and has also made the Notice of Rights available in multiple languages.
The revised Notice of Rights must be provided to all current employees in their primary language, with the employer’s “calendar year” for the purposes of protected time off inserted. Employers must also provide the Notice of Rights to all newly-hired employees and post the Notice of Rights in an area that is visible and accessible to employees in English and in any other languages employees in that workplace speak.
Distributing the Notice of Rights does not replace the need to maintain a comprehensive written policy that complies with the minimum requirements of the ESSTA/Protected Time Off Law.
Importantly, as a reminder, employers are required to keep records establishing the date the Notice of Rights was provided to each employee and proof that the Notice of Rights was received by that employee.
Accordingly, the DCWP recommends saving employee-signed copies of the Notice of Rights or email receipts if distributed electronically.
Employers should also take the time to review the extensive recordkeeping requirements that apply for each employee and for each pay period. These requirements are laid out on page 44 of the FAQs.
Model Forms
The DCWP has released model forms for employers’ use in complying with recordkeeping requirements:
The use of these forms is optional. The forms can also be customized or combined at the employer’s election.
At present, these forms are only available in English but the DCWP advises that Spanish translations are forthcoming.
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In light of the ESSTA/Protected Time Off Law amendments now in effect and the clarifying guidance issued by the DCWP, employers should promptly consult with counsel to ensure their safe/sick time or PTO policies are revised to comply with the new terminology and requirements. Employers must also take affirmative steps to notify employees of these changes.
Failure to do so can result in monetary penalties, and employees have a private right of action should their employer fail to properly apply the ESSTA/Protected Time Off Law.
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