New York City’s Sick and Safe Leave Law May Expand Again
The New York City Council has passed a bill which would significantly broaden the scope of the City’s Earned Safe and Sick Time Act (ESSTA). The bill, which was sent to the Mayor late last month, proposes to expand the qualifying reasons employees can use leave, grants additional unpaid leave entitlements, and clarifies collective bargaining agreement waivers.
Additional Reasons for ESSTA Leave
Under the existing ESSTA, New York City employers are required to provide employees with an annual allotment of:
40 hours of unpaid sick and safe leave for employers with 4 or fewer employees and less than $1 million in income in the prior tax year,
40 hours of paid sick and safe leave for employers with between 5 and 99 employees (or with one domestic worker), and
56 hours of paid safe and sick leave for employers with 100 or more employees.
Leave can currently be used for:
An employee’s personal illness, injury, or mental health concerns;
An employee’s or an employee’s loved one’s medical appointments, including preventive care;
Caring for a sick family member or loved one;
Business, school or childcare closures by order of a public official for public health emergencies; and
Situations involving domestic violence, sexual offenses, stalking, or human trafficking impacting the employee or a loved one.
If enacted, the bill would expand the ability to take sick leave for business closures to include a “public disaster” such as a fire, explosion, terrorist attack, severe weather condition, or other catastrophe that is declared a public emergency or disaster by the president, the governor, or the mayor. Individuals will also be able to take leave if a public disaster impacts their child’s school or childcare provider, either by closure or “restricted in-person operations.” Relatedly, sick time will be available when employees are unable to travel to work because of official instructions to shelter in place or avoid travel during a disaster.
The reasons for safe time have also expanded to permit time off for workplace violence (which includes threats of violence in the workplace) and to add protections previously found in the NYC Temporary Schedule Change Act (TSCA), which required employers to accommodate up to two temporary schedule changes annually for qualifying personal events. Specifically, safe leave will now include the following “personal events”:
Caregiving Responsibilities for a minor child or a "care recipient" — defined as someone with a disability who lives with the employee or is a family member and depends on the employee for daily needs or medical care.
To initiate, attend or prepare for legal proceedings or take steps to restore subsistence benefits or housing assistance for themselves, a family member, or a care recipient.
With this change, employees still retain the right to request temporary schedule changes under the TSCA such as working remotely, swapping shifts with another employee, or working earlier or later in the day or week - and employees remain insulated from retaliation for doing so. However, under the proposed bill, employers are no longer required to grant these schedule change requests.
Additional Time Entitlements
The bill would also require all employers to provide 32 hours of unpaid sick and safe leave in addition to what is currently available under ESSTA. The 32 hours of unpaid sick and safe leave must be effective immediately upon hire (i.e., with no accrual period) and is replenished annually on the first day of the calendar year without any carryover to the following year. The additional 32 hours may be used for any reason permitted under the ESSTA, but paid leave must be used first – unless the employee requests otherwise.
Additionally, the bill officially codifies into the City law the New York State requirement for a separate entitlement to 20 hours of paid prenatal leave each 52 week period. This amendment is more of a formality, however, as the New York City regulations and related ESSTA notice had already been revised earlier this year to note the inclusion of the paid prenatal leave time.
Clarifications to Collective Bargaining Exemptions
Under current rules, employees covered by a collective bargaining agreement (CBA) may be excluded from ESSTA if the CBA explicitly waives the law’s protections and offers comparable benefits. The revised bill clarifies that the CBA may provide for comparable or superior benefits, and notes that unpaid time off may also be included in the determination for whether benefits are comparable only for the unpaid sick/safe leave requirement.
Next Steps
The bill will take effect 120 days after it is enacted. While the bill is pending, employers should identify, review, and consider updating sick/safe leave policies and implement the training and procedural mechanisms necessary to properly implement new leave requirements. The Firm will be closely monitoring developments and additional guidance. Employers with questions or related concerns should contact Sabrina Jorge at sjorge@fglawllc.com or any other attorney at the Firm.
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