The New York City Department of Consumer and Worker Protection recently issued amendments to the rules implementing New York City’s Earned Safe and Sick Time Act (“ESSTA”).

Summary of ESSTA

As a reminder, under ESSTA, employers must provide New York City employees time off to receive medical care, recover from illness or injury, care for a family member who requires medical attention, or seek assistance if the employee or a family member is the victim of domestic violence, unwanted sexual contact, stalking, or human trafficking. The amount of time off that employers must provide, and whether such time off is paid, varies based on the number of an employer’s employees

What Employees Are Covered

New regulations clarify that the following employees qualify for time off pursuant to ESSTA:

• Those who perform work (physically or remotely) within New York City, regardless of where the employer is located, and
• Those whose physical work location is outside of New York City, but regularly perform work in New York City throughout the year.

The regulations also clarify that employees who exclusively perform work (including remote work) while physically located outside of New York City are not covered by ESSTA, even if the employer is in New York City.

Employer Threshold Clarified

 Under ESSTA, employers with more than 100 employees must provide up to 56 hours of paid safe and sick time per year, while smaller employers must generally provide up to 40 hours per year (whether such time is paid depends on the employer’s revenue and employee headcount). The regulations clarify that employee headcount:

• Is determined based on the highest total number of employees at any point during the year, and
• Includes all employees nationwide, not just those located in New York City.



The headcount now explicitly includes employees who are jointly employed by more than one employer and employees on temporary leaves of absence. The regulations also clarify that if an employer increases headcount from below 100 employees to 100 or more employees, the employer must immediately increase its employees’ maximum annual safe and sick time accrual from 40 to 56 hours. Conversely, if an employer decreases headcount from 100 or more to less than 100 employees, the employer may not reduce safe and sick time entitlements from 56 to 40 hours until the start of the following year.

Notice and Documentation Requirements

ESSTA permits employers to require employees to provide (i) advance notice before using safe and sick time, and (ii) documentation demonstrating a need to use safe and sick leave for more than 3 consecutive workdays. The regulations explicitly require employers to advise employees, in writing, of the above policies before implementing them. Further, employers requiring written documentation of a need for time off must reimburse employees for all reasonable fees and costs incurred in acquiring said documentation, including those charged by health care providers. Additionally, employers cannot require written documentation before the employee returns to work. Finally, employers must specify, on a pay statement or other form of written documentation provided to the employee each pay period, the total balance and amount of safe and sick time available for an employee’s use. 

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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.