Changes To NYC Employee Leave And Scheduling Laws Now In Effect

New York City Council has amended two important New York City employment laws: the Earned Safe and Sick Time Act (“ESSTA”) and the Temporary Schedule Change Law (“TSCL”). The changes grant employees an additional 32 hours of unpaid leave, expand the permissible uses for such leave, and eliminate employers’ obligation to grant twice-annual temporary schedule changes. Employers should closely review their policies and procedures to ensure compliance with the expanded laws.

Additional Unpaid Leave

Currently, ESSTA requires employers to provide safe and sick leave to employees working in New York City. Employers with 100 or more employees must provide up to 56 hours of paid sick leave per calendar year. Employers that have between 5 and 99 employees, one (1) or more domestic workers, or an annual net income of at least one million dollars ($1,000,000) must provide up to forty (40) hours of annual paid leave. Employers with four (4) or fewer employees must provide up to forty (40) hours of unpaid safe/sick leave. All employees accrue one (1) hour of safe/sick leave for every thirty (30) hours worked.

Under the new amendments, ESSTA will now require all employers to provide an additional thirty-two (32) hours of unpaid safe/sick leave available immediately at the date of hire and at the beginning of each calendar year thereafter. The leave is not required to be carried over. An employee must be permitted to use accrued paid leave, if available, before taking unpaid leave. Employers are not required to pay out the balance of accrued unpaid sick leave upon termination.

Expanded Use of Safe/Sick Time

ESSTA currently entitles employees to use safe/sick time for the following reasons:

• To address an employee’s or their family member’s need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition, or for preventative medical care.
• Government-ordered work or school/childcare closure due to a public health emergency.
• When an employee or employee’s family member has been the victim of domestic violence, a family offense matter, sexual offense, stalking or human trafficking, to take actions necessary to ensure safety including obtaining social and legal services and relocating.

Now, under the new amendments, safe/sick time may be used for the following additional reasons:

• Government-ordered work or school/childcare closure, or direction to remain indoors or avoid travel, due to a public disaster.
• When an employee or an employee’s family member has been the victim of workplace violence, to take actions necessary to ensure safety including obtaining social and legal services and relocating.
• To take actions necessary to apply for, maintain, or restore subsistence benefits or shelter for an employee or their family member or care recipient.
• To initiate, attend or prepare for a legal proceeding or hearing related to subsistence benefits or housing to which the employee, their family member or care recipient is a party.
• To provide care for an employee’s minor child or care recipient.

Rollback of Temporary Schedule Change Obligations

TSCL currently requires employers to grant employee requests for a temporary change to the employee’s work schedule relating to a personal event up to two times per year for up to one business day per request.

As amended, TSCL requires employers to respond to an employee’s request for a temporary schedule change as soon as practicable but no longer requires that employer agree to such a request. Employees remain protected from retaliation for making a temporary schedule change request, but employers may approve, deny, or propose an alternative to such a request.

Application to Unionized Workforces

For employees covered by a valid collective bargaining agreement that was entered into, extended, or renewed after April 1, 2014, the Law applies unless:

1. The collective bargaining agreement expressly waives the Law’s provisions, AND
2. The agreement provides a “comparable benefit,” as defined by the amendments.

A “comparable benefit” must include the following components or the equivalent:

• 40 or 56 hours of paid time off work (depending on the employer’s size);
• Additional 32 hours of time off work, paid or unpaid, and immediately available upon hiring;
• Additional 20 hours of paid prenatal leave;
• Use of protected time off for all protected reasons under the Law, including family care; AND
• No discipline (including points systems) for using protected time off.

Exception: For employees in the construction or grocery industries covered by a collective bargaining agreement, the Law does not apply if the collective bargaining agreement expressly waives the Law’s provisions.

Recommendations

The amended Earned Safe and Sick Time Act (ESSTA) and the Temporary Schedule Change Law (TSCL) significantly expand employees’ entitlement to paid and unpaid leave. Employers should now:

• Update leave policies to reflect the additional 32 hours of unpaid safe/sick leave and expanded permissible uses.
• Train HR and managers on the removal of mandatory schedule change approvals under TSCL and the broadened scope of ESSTA.
• Review payroll and tracking systems to accommodate front-loaded unpaid leave and ensure compliance with accrual and usage rules.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.