By: HUB's Absence Management Team

On September 15, 2023, the New York City Department of Consumer and Worker Protection adopted numerous changes to the New York City Earned Safe and Sick Time Act (ESSTA). These changes, which go into effect on October 15, 2023, are outlined below.

Overview: New York City Earned Sick and Safe Time Act (ESSTA)

Under the New York City ESSTA, covered employees have the right to use leave time to miss work for reasons associated with medical care and treatment for themselves or a family member and to seek legal and social services or take other safety measures if the employee or their family member may be the victim of domestic violence, unwanted sexual contact, stalking, or human trafficking.

This bulletin covers information regarding changes to the New York City ESSTA that go into effect on October 15, 2023. All employers with employees who perform any work in New York City should review this bulletin carefully and update their New York City ESSTA policies and procedures accordingly.

Eligible Employees

Most employees who physically perform work in New York City are covered by the ESSTA. The new regulations clarify that employees who perform work, including telecommuting, only while physically located outside of New York City are not eligible for ESSTA, even if the employer is located within New York City. In addition, employees who only work in New York City for very limited, short periods of time, such as a one-day project or attending a meeting in New York City for one or two days per year, are not covered under the ESSTA.

The amendments also make clear that an employee who regularly performs or is regularly expected to perform work within New York City during a calendar year is covered by the ESSTA, even if their primary work location or normal base of operations is outside of New York City. However, only the hours worked within New York City count towards “hours worked” for the purposes of calculating an employee’s ESSTA accrual.

Employer Size and Coverage Thresholds

Private employers with 100 or more employees must provide employees with up to 56 hours of ESSTA time, while those with less than 100 employees must provide up to 40 hours. The updated regulations clarify that when determining how much ESSTA to provide, employers must use the highest number of employees employed nationwide during the current calendar year to date. This employee count must include all employees who are full time, part time, and jointly employed, regardless of whether the employee is actively at work, so long as the employer has a reasonable expectation that the employee will return to active employment.

In addition, when an employer’s employee count shifts from 99 to 100 employees, they must make an immediate change to the ESSTA benefits provided to their employees and allow employees to use and accrue additional ESSTA time. However, if an employer’s employee count shifts below 100 employees, the employer cannot reduce ESSTA entitlements until the following calendar year.

Employee Notice and Documentation Requirements

An employer can require an employee provide notice of the need to use ESSTA time for a foreseeable absence seven days in advance and as soon as practicable for an unforeseeable absence. The new regulations clarify that an absence is only foreseeable if the employee is aware of the need to use ESSTA time seven or more days prior to using it.

The new regulations also state that the employer may require employees to use reasonable reporting methods such as an email request sent to a designated email address or an electronic request through a scheduling software system. However, the employer must make these required methods clear in their written policy, and employees must be trained on making requests in the software system and have access to the system during non-working hours.

Employers who require written documentation of an employee’s need to use ESSTA time must make clear in their written policies:

  • what documentation is required and will be accepted, and
  • how the employee can submit the documentation.

In addition, employers must reimburse employees for any fees charged by their medical provider associated with obtaining such documentation.

Employer Reporting Requirements

Employers are required to display certain ESSTA accrual information on an employee’s pay statement each pay period. This can be provided through a physical pay stub or an electronic employee-accessible system. The new regulations state that this information must include:

  • The amount of ESSTA time accrued during the pay period;
  • The amount of ESSTA time used during the pay period;
  • The employee’s available ESSTA accrual balance; and
  • The employee’s total ESSTA balance if it is different than their available balance.

The new regulations also indicate that employers who use an electronic system to issue pay statements must:

  • electronically alert the employee each period that the required information is available;
  • make the required information for past pay periods available within the electronic system; and
  • make the required content in the system readily accessible to the employee outside of the workplace.

Next Steps

These new regulations go into effect on October 15, 2023. Employers should review their current policies and update their ESSTA policies and procedures accordingly.

NOTICE OF DISCLAIMER
Neither Hub International Limited nor any of its affiliated companies is a law or accounting firm, and therefore they cannot provide legal or tax advice. The information herein is provided for general information only and is not intended to constitute legal or tax advice as to an organization’s specific circumstances. You should consult an attorney, accountant, or other legal or tax professional regarding the application of the general information provided here to your organization’s specific situation in light of your organization’s particular needs.