The Earned Safe and Sick Time Act was enacted in 2020, but until now, the Department of Consumer and Worker Protection (DCWP) had not published any formal updates to the corresponding ESSTA rules.

The new rules provide necessary clarifications, which can be summarised as follows:

To whom does the law apply?

The new rules removed the requirement that employees need to work at least 80 hours per calendar year in New York City to be covered by the ESSTA, providing that an employee who performs, or is expected to perform regularly, work in New York City during a calendar year, regardless of whether his primary location is outside New York City, is covered by ESSTA, but only hours worked within the city count as "hours worked" for purposes of accumulating and using sick and safe time under ESSTA.

Conversely, an employee outside New York will not be covered, even if the employer is in New York.

How is the employer's size determined?

The total number of employees is determined by the 'highest total number of employees employed simultaneously' during a calendar year, including part-time employees, employees jointly employed by more than one employer, and employees on paid or unpaid leave, including sick/safety leave.

What are the employer's obligations?

Employers must set out in writing the notice they intend to require employees to use sick and safe leave and how to apply.

An employer may require 'reasonable written documentation' indicating the need for leave from an employee using sick and safety leave for three consecutive working days but may not require the employee to disclose the reason for the leave.

Moreover, employers must disclose on employees' pay slips the amount of holiday and sick leave used during the pay period and the balance of accrued time remaining.

Employers must therefore check their internal policies or adopt new ones to be compliant with the new rules and the law.