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Being a firm of our word is an integral part of our culture and, therefore, here we are to keep the promise we made in Part IV of the series on the New York City (NYC) Labor Law. As a recap, we hammered on key areas of the NYC Labor Law such as “Overtime Pay Exemptions under the (Fair Labor Standards Act) FLSA and New York Labor Law,” “Employee Leave, Sick, and Safe Time,” “Commuter Benefits,” and “New York City’s Fair Workweek Law.” Furthermore, in order to ensure that employers stay at the top of the game, we provided them with tips on “How to Remain Compliant with the Fair Workweek Law” and “How to Stay Compliant with the Higher Salary Threshold for New York City Employees” in Part IV of this series.

In pursuit of the goal to keep you enlightened and educated, this blog, which will be Part V of the series, introduces you to another essential area of the NYC Labor Law, particularly the “New York City Earned Safe and Sick Time Act (NYC ESSTA)” statute. Before we start the discussion, every NYC employer should take keen note of the following.

The NYC ESSTA was recently amended following a bill signed into law by Mayor Bill de Blasio on September 28, 2020. Generally, the aim of this amendment, which took effect on September 30, 2020, was to ensure that the NYC ESSTA aligned better with the New York State’s new paid sick leave law (the “NYS Leave Law”). Accordingly, these amendments expanded enforcement mechanisms, imposed new notice and new employer reporting requirements, expanded the scope of prohibited retaliation, and revised the amount of leave that NYC employers are obligated to provide.

That being said, let’s dive into the discussion.

Extent of the NYC ESSTA Coverage

Under the NYC ESSTA, employers in NYC are obligated to provide many categories of employees with sick leave. Most private employers in NYC, including small businesses and nonprofits are covered by the NYC ESSTA. Categories of NYC employees that should be provided with sick leave under the NYC ESSTA include:

  • Full-time employees;
  • Part-time employees;
  • Employees who are family members but not owners;
  • Transitional jobs program employees;
  • Employees who live outside of NYC.

Exemptions under the NYC ESSTA

  • However, the law also exempts several categories of individuals from these minimum sick leave guarantees. They include:
  • Employees of government agencies;
  • Students on federal work study;
  • Independent contractors;
  • Certain categories of licensed physical & occupational therapists as long as they meet other criteria;
  • Certain employees subject to CBAs (collective bargaining agreements) (if the agreement expressly provides comparable benefits & waives the provisions of the NYC ESSTA).

Amount of Leave Accruals under NYC ESSTA

Under the NYC ESSTA, the net & size income of the employer determines the amount of leave and whether it is paid or unpaid as follows:

  • Up to 40 hours of unpaid leave – Employers with fewer than five employees & Net income of less than $1 million in the previous tax year;
  • Up to 40 hours of paid leave – Employers with 5–99 employees and those with fewer than five employees & had a net income of $1 million or more in the previous tax year;
  • Up to 56 hours of paid leave – Employers with 100 or more employees.

Note: New employees begin accruing leave on the later of their first day of employment.

Further, the law obligates employers to provide employees with one hour of leave per 30 hours worked, subject to usage caps & annual accrual of:

  • 40 hours for employers with 99 or fewer employees;
  • 56 hours for employers with 100 or more employees (effective January 1, 2021).

Purposes for which Employees can Use the NYC ESSTA Leave

The law offers a range of permissible purposes/situations under which employees can use the NYC ESSTA leave. Examples include:

  • Public health emergency – as an employee, if you need to care for a child whose childcare provider or school has closed due to a public health emergency or the employer’s business closes due to a public health emergency, you can use the NYC ESSTA leave;
  • Poor Health or Physical and/or Mental Illness – in the case of a physical and/or mental illness, health condition, injury to self, the need for medical care or diagnosis, the treatment of injury, physical, and/or mental illness, or the needs for preventive medical care, an employee can use the NYC ESSTA leave;
  • Domestic violence – if the employee or a family member may be the victim of any act or threat of domestic violence or human trafficking, stalking, and/or unwanted sexual physical contact and there’s need to take measures necessary to restore the safety, physical, psychological and/or health to protect those who associate or work with the employee, then they can use the NYC ESSTA leave. This also includes:
  • If the employee needs to take part in relocating, safety planning, and/or engaging in other actions to protect their safety and/or that of their family member(s);
  • If the employee needs to obtain services from a rape crisis center or domestic violence shelter;
  • If the employee requires to meet with a district attorney or file a domestic incident report with law enforcement;
  • Meet with a social service provider and/or an attorney to obtain advice and/or information regarding issues that include, but no limited to consumer credit, housing, orders of protection, discrimination in employment, custody, immigration, visitation, and/or housing.

Care of a family member – if the employee has a family member who needs medical care or diagnosis, or who needs preventive medical care, treatment of an injury, health condition, and/or physical or mental illness.

Stay tuned for next part of the series and, as usual, always be #UnusuallyMotivated. In the interim, if there are any questions or comments, please let us know via the Contact Us page!