The New York City Department of Consumer and Worker Protection has released its Final Rule for the NYC Earned Safe and Sick Time leave (ESSTA). These amendments are designed to bring the City’s Earned Safe and Sick Leave policy more in line with New York State’s Paid Sick Leave law (PSL). The important aspects of the Final Rule are listed below:

- The Final Rule clarifies that counting employees for the purpose of ESSTA accrual and caps is based upon the number of employees the employer has nationwide (not merely those employees in NYC). This clarification brings the ESSTA in line with PSL.

- The Final Rule clarifies that any employee who “regularly performs, or is expected to regularly perform, work in New York City during a calendar year” is eligible for ESSTA for that year. This is true even if the employee primarily works in another state.

- The Final Rule states that all time an employee works is eligible for ESSTA accrual. If an employee works a fractional amount more (or less) than 30 hours (the standard amount required for 1 hour of ESSTA accrual), then the fractional amount must still be accrued and stored. For the sake of simplicity, employers may round up accrual to the nearest 15 minutes (or less if less time is needed).

- The Final Rule clarifies the term “foreseeable leave.” According to the ESSTA, leave is “foreseeable” if the employee is aware of the need for leave 7 days or more before its use. If leave falls within this threshold, then an employer may require reasonable notice of the need for leave.

- The Final Rule clarifies that reasonable notice can include an e-mail as well as a leave request in a company-used scheduling system.

- The Final Rule clarifies that an employer may require reasonable documentation of the need for ESSTA leave. Documentation may be received from a licensed medical provider, a licensed social worker, or a licensed mental health counselor. The employer must pay all costs associated with obtaining this documentation.

These updates should make administration of both NYC Earned Safe and Sick Leave and NY Paid Sick Leave easier, as significant portions of both leaves overlap with each other. To complement these changes, employers must also provide a new written ESSTA policy to all employees explaining ESSTA leave. It must also contain the following information:

- A section that guarantees that the employer will not ask questions about any medical or personal details regarding the use of ESSTA (outside of what is necessary to approve the leave);

- A section that guarantees the confidentiality of any information the employer receives about the employee’s use of ESSTA leave;

- (If reasonable documentation will be required for leave) A section explaining that foreseeable ESSTA will require reasonable documentation. Such a section must state what kinds of documentation are acceptable, how to submit the documentation, and the process for cost reimbursement; and

- (If ESSTA is front-loaded) A section explaining that ESSTA leave is a front-loaded benefit and is ready for use immediately at the beginning of each year.

Employers should ensure that their ESSTA policies are in line with the new Final Rule as soon as possible. The NYC government will hopefully release more materials (including a new model ESSTA policy) in the coming weeks. FNA Insurance Services, Inc. will track the developments and inform you as soon as any significant movement occurs.

You can read the entire ESSTA Final Rule HERE.