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October 9, 2020

New York City Amends Earned Safe and Sick Time Act

On September 28, 2020, Mayor De Blasio signed amendments to the New York City’s Earned Safe and Sick Time Act (ESSTA).  These amendments align the ESSTA with the state’s paid sick leave law, as summarized in our April edition of the Benefit Beat.   The amendments took effect September 30, 2020.

Covered employer.  Under prior law, employers employing less than 5 employees in a calendar year must provide unpaid sick leave.  The amendments redefine the City’s definition of employer to mirror the State’s definition of employer.  Thus, the following employers are required to provide paid safe and sick time to their employees:

  • Employers who employ 5 or more employees;
  • Employers who employ one or more domestic workers; and
  • Employers who employ 4 or fewer employees whose net income is $1 million or more during the previous tax year.

Eligible employees.  Under prior law, employees were required to work at least 80 hours per calendar year in New York City in order to be eligible for leave.  The amendments eliminate the 80-hour requirement.

Amount of leave.   Under prior law, all employers, regardless of size, could cap annual leave accrual at 40 hours.  The amendments conform the accrual caps with the State’s accrual caps as follows:

Employer Size

Cap on accrued ESST hours

per calendar year

99 or fewer employees

40

100 or more employees

56

 

Under prior law, while employees began to accrue safe and sick time on the date of hire, they had to wait 120 days before using the leave.  The amendments allow an employee to begin using accrued safe and sick time beginning the earliest of his/her date of hire, or September 30, 2020.

The date upon which accrued leave may be used is contingent upon employer size.  Beginning January 1, 2021, these employees can begin using paid safe and sick time as it is accrued:

  • Employees who works for an employer who employs 4 or fewer employees and whose net income is $1 million or more during the previous tax year; and
  • Employees who 1) have accrued over 40 hours of paid sick and safe leave as of January 1, 2021 and 2) works for an employer with 100 or more employees.

Unused accrued safe and sick time can be carried over to the next following year but is subject to the 40 or 56 hour limits.  An employer can limit an employee’s use of safe and sick time, subject to the 40 or 56 hour limits in a calendar year.  In lieu of carryover, an employer may pay an employee for unused safe and sick time at the end of the year, and frontload either 40 or 56 hours on the first day of the following year. 

Employer notice.  ESST requires employers to provide notice to employees of their rights under the law.  As a result of the changes made by the amendments, employers must provide updated notices to new employees upon commencement of employment.  For existing employees, the updated notice must be provided by October 30, 2020.  The City provides an updated model notice in multiple languages that can be used on its webpage.

Further, employers are required to provide the amount of leave accrued and used during a pay period and an employee’s total balance of accrued leave on a pay stub or other form of written documentation provided to employees each pay period.

Additional information about these changes is available from the New York City’s Consumer Affairs webpage.

 

The information contained in this article is provided as general guidance and may be affected by changes in law or regulation. This article is not intended to replace or substitute for accounting or other professional advice. Please consult a CBIZ professional. This information is provided as-is with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.

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