New York City Protected Time Off Rules Adopted
The New York City Department of Consumer and Worker Protection (“DCWP”) has adopted amendments to the rules relating to the City’s Earned Sick and Safe Time Act (the “Law”). The amended rules take effect on July 23, 2026.
As employers will recall, in 2025 the Law was amended to expand both the reasons employees can take leave for sick and safe leave purposes and the amount of leave employees are entitled to. In addition to the pre-existing reasons for sick and safe leave, under the amended Law employees may now use sick and safe leave: (1) to care for the employee’s minor child or care recipient, (2) due to a business or childcare closure related to a public disaster, (3) to initiate, attend, or prepare for legal proceedings, or (4) to take steps to restore subsistence benefits or housing assistance for the employee or their family member or care recipient. Employees are also now entitled to 32 hours of unpaid sick and safe time in addition to the 40 or 56 hours (depending on employer size) of sick/safe time they were already entitled to. The amendments to the Law also codified within City law the New York State requirement to provide employees with 20 hours of paid prenatal personal leave in a rolling 52-week period.
The amendments largely bring the rules into alignment with the 2025 changes to the Law. However, they also impose additional requirements on employers and clarify open questions. Below is a summary of key provisions of the amended rules.
Terminology. The amended rules now refer to all sick/safe leave that employees are entitled to as “protected time off” rather than as “sick and/or safe leave”. “Protected time off” refers to both paid and unpaid time used for sick and/or safe leave purposes under the Law. “Protected time off” does not include paid prenatal personal leave, which remains its own discrete category of leave, but is still considered legally protected time.
Paid v. Unpaid Protected Time Off. The amended rules confirm that an employer may fulfill its obligation to provide 32 hours of unpaid protected time off by providing some or all of it as paid protected time off. For example, an employer with 75 employees is required to provide employees with 40 hours of paid protected time off and 32 hours of unpaid protected time off; alternatively, they can elect to provide employees with 72 hours of paid protected time off instead of providing a separate unpaid leave bank. However, when an employer uses paid leave to satisfy the unpaid leave requirement, at least 32 hours of paid leave needs to be made immediately available for use by the employee (e.g., frontloaded); it cannot be accrued.
The amended rules also confirm that when an employee has both paid and unpaid protected time off available, the employer is required to provide paid protected time off to cover an absence unless the employee requests to draw from their unpaid protected time off balance instead. If an employee wants to use paid protected time off to cover an absence but does not have enough paid time available, the employer must apply any available unpaid protected time off to cover the remaining time.
Unpaid Protected Time Off and Exempt Employees. The requirement to provide unpaid protected time off left an open question for employers with exempt employees: Under federal and New York State wage and hour laws, absent specific exceptions, an employer is not permitted to deduct from an exempt employee’s pay due to an absence of less than a full day without risking loss of their exempt status. This is because exempt employees must be paid on a “salary basis,” meaning that they must receive a predetermined amount each week that generally cannot be reduced based on the number of hours the employee works in a week. As a result, if an exempt employee were to use four hours of unpaid protected time off and their employer reduced the employee’s pay to account for the absence, the employee has not been paid on a salary basis and therefore risks losing their exempt status (and becoming eligible for overtime pay) for that week. The amended rules shine some light on how employers should manage this contradiction, stating that employers should pay employees for some or all of the 32 hours of unpaid protected time off “when necessary to comply with other legal obligations, or to meet the criteria for an overtime exemption under federal and state law, such as the Fair Labor Standards Act salary basis test.” This seems to suggest that, for exempt employees, unless the employee takes a full day of unpaid protected time off, or unpaid time is also permissible for some other reason (e.g., the employee is using the sick leave concurrently with FMLA leave), the employer should pay the employee for the partial day absence—even if the employee is using their bank of unpaid protected time off—to preserve the employee’s exempt status for the week they are taking the partial day absence. In effect, this could result in exempt employees receiving more paid protected time off than non-exempt employees, particularly because, as noted above, an employer cannot require an employee to take paid protected time off instead of unpaid protected time off.
Paystubs. Employers have long been required to provide information about an employee’s sick/safe leave balances on the employee’s pay statements. The amended rules further delineate information that must be provided to employees each pay period. Information that must now be provided includes: (1) the amounts of paid protected time off accrued and used during the pay period; (2) the amount of unpaid protected time off accrued and used during the pay period; and (3) the amounts of both paid and unpaid protected time off that are available for use. Note that if an employee’s balance of paid and/or unpaid protected time off exceeds what the employee may use in the calendar year, the paystub must show both the balance of time off and the amount of paid and unpaid time the employee has available to use in the calendar year. In addition, for each pay period that an employee uses paid prenatal personal leave, their employer must inform the employee in writing of the amount of paid prenatal leave used during the relevant pay period and the total balance available for use.
Separation Notice. Instead of including the information noted above on an employee’s paystub, employers are permitted to make the required information available to employees electronically. However, the amended rules create a new disclosure obligation for employers when an employee separates from employment and the employer has been using an electronic system to provide the required information: When an employee’s employment ends, the employer can either continue to provide the employee with access to the employer’s electronic system where the employee is able to access the required information detailed above for six months. Alternatively, the employer can provide the employee with a written statement containing the required information for the employee’s last pay period. If choosing the latter, the employer must provide the written statement to the employee within one week of the employee’s last pay date.
Rehire. Employers are already required to reinstate a former employee’s accrued paid protected time off if the employee is rehired within 6 months. The amended rules add a similar requirement for unpaid protected time off: If a former employee is rehired within the same calendar year, the employer must reinstate any unused unpaid protected time off that the employee had available when they initially left employment.
Employers should review their sick/safe leave and PTO policies and procedures to ensure compliance with the amended rules and ensure that any employees responsible for administering employee time off are aware of the changes. Employers with questions about any of these updates should contact Kate Townley at ktownley@fglawllc.com or any other attorney at the Firm.
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