New York City Employer Reminder: Updated Notice of Employee Safe and Sick Leave Rights Must Be Provided by January 1, 2021

December 21, 2020
Pursuant to guidance issued by the New York City Department of Consumer and Worker Protection (“DCWP”), employers with 100 or more employees and employers of domestic workers in New York City must distribute a Notice of Employee Rights: Safe and Sick Leave (the “updated notice”) to all current employees by January 1, 2021. On October 21, 2020, DCWP published an updated notice for employers, together with additional guidance concerning the notice requirements in the form of Frequently Asked Questions.
 
The New York City Safe and Sick Leave Law went into effect on April 1, 2014 and has been amended twice. On September 30, 2020 amendments to expand Safe and Sick Leave and to align NYC requirements with New York State law requirements took effect. Effective January 1, 2021, the NYC Safe and Sick Leave law requires employers with 100 or more employees to provide up to 56 hours of paid Safe and Sick Leave, and employers with four or fewer employees and a net income of $1 million or more to provide up to 40 hours of paid Safe and Sick Leave.
 
All covered employers are required to provide notice to their employees of their rights to Safe and Sick Leave. Pursuant to the DCWP guidance, under the new amendments that took effect September 30, 2020, employers with 100 or more employees and employers of domestic workers must, by January 1, 2021, provide the updated notice to their employees and post the updated notice in the workplace where it is visible and accessible to employees.
 
Additional requirements for NYC’s Safe and Sick Leave are outlined below.
  • Amount of Safe and Sick Leave. The requirements for employers vary depending on employer size:
    • All Employers. All employers must provide up to 40 hours of Safe and Sick Leave each calendar year.
    • Employers with 100 or More Employees. Effective January 1, 2021, employers with 100 or more employees must provide up to 56 hours of Safe and Sick Leave each calendar year.
       
  • Paid vs. Unpaid Leave. The requirements for whether employees are entitled to paid Safe and Sick Leave vary depending on employer size and net income:
    • Paid Leave. Employers must provide paid Safe and Sick Leave if:
      • The employer has five or more employees;
      • Effective January 1, 2021, the employer has a net income of $1 million or more in the previous tax year; and/or
      • The employee works in a home as a domestic worker (e.g., babysitter, housekeeper, companionship worker).
    • Unpaid Leave. Employers that have fewer than five employees and have a net income of less than $1 million may provide unpaid Safe and Sick Leave.
       
  • Accrual of Safe and Sick Leave.
    • Employees earn Safe and Sick Leave at a rate of one hour for every 30 hours worked.
    • Employees may carry over unused Safe and Sick Leave to the next year.
    • For employees who are able to accrue a maximum of 56 hours instead of 40 hours in a calendar year, employers do not have to allow them to use any accrued Safe and Sick Leave over 40 hours until January 1, 2021.
    • For employees rehired by the same employer within six months, the employer must reinstate previously accrued Safe and Sick Leave, unless the employer paid the employee for unused Safe and Sick Leave when the employee left and the employee agreed to be paid out.
       
  • Determining Employer Size. Employers should count all employees who work for pay on a full-time, part-time, seasonal, or temporary basis. For counting purposes, it does not matter where the employees live. The method of counting employees depends on how long the employer has operated:
    • Employers that have Operated for Less than One Year. Employers should count the number of employees performing work for pay per week.
    • Employers that have Operated for One Year or More. Employers should count the number of employees working for the employer per week at the time the employee used Safe and Sick Leave.
       
  • Covered Employees. Safe and Sick Leave and notice thereof must be provided to any employees who work part- or full-time at any size business or nonprofit in NYC, regardless of the employer’s location, including domestic workers, temporary and seasonal employees, per diem and on-call employees, and undocumented workers.
    • Telecommuting Employees. Employees who telecommute are covered by the Law for the hours when they are physically working in NYC (on-site or by telecommuting), even if the employer is physically located outside NYC.
    • Employees Who Occasionally Work in NYC. For employees who work in NYC on an occasional basis, the employer must calculate Safe and Sick Leave accruals based on the hours that the employee spends working in NYC.
    • Independent Contractors. Safe and Sick Leave requirements do not apply to independent contractors.
       
  • Employee Use of Safe and Sick Leave. Employees may use Safe and Sick Leave for:
    • Health, including to get medical care or to recover from illness or injury;
    • Caring for a family member who is sick or has a medical appointment;
    • When the employee’s job or their child’s school closes due to a public health emergency; and/or
    • The employee’s safety or for a family member’s safety because of domestic violence, unwanted sexual contact, stalking, or human trafficking.
       
  • Notice of Use of Leave by Employees. Employers can require employees to give advance notice of a planned use of Safe and Sick Leave, such as a scheduled doctor’s appointment; however, employees do not have to give advance notice of an unexpected use of Safe and Sick Leave, such as a sudden illness or medical emergency. Employees’ right to privacy includes the right not to share the details with their employer about why Safe or Sick Leave was used.
     
  • Documentation. If employees use more than three workdays in a row of Safe and Sick Leave, employers can require documentation, but must reimburse employees for any fees paid for the required documentation. The documentation should not include the details of the employee’s private medical or personal situation.
     
  • Prohibited Retaliation. It is illegal for employers to punish or fire employees in retaliation for requesting or using Safe and Sick Leave or for reporting violations.
     
  • Required Written Notice and Disclosures. Employers must provide employees with a written Safe and Sick Leave policy that explains how employees can use the benefits.
    • The Safe and Sick Leave policy must explain at a minimum:
      • The amount of Safe and Sick Leave provided by the employer;
      • If the employer uses an accrual system: when accrual of Safe and Sick Leave starts, the rate of accrual, and the maximum number of hours an employee may accrue in a calendar year;
      • The procedures that an employee must follow to provide notice to the employer of a need to use Safe and Sick Leave;
      • All requirements for written documentation or verification of the use of Safe and Sick Leave;
      • Any reasonable minimum increment and/or subsequent fixed interval for the use of accrued Safe and Sick Leave;
      • Any policy regarding consequences for the employee’s failure or delay to provide required documentation;
      • Any policy regarding employee discipline for misuse of Safe and Sick Leave;
      • The employer’s policy regarding carryover of unused Safe and Sick Leave at the end of the calendar year;
      • If the employer uses a term other than “safe/sick time” or “safe and sick time” to describe leave provided by the employer: a statement that employees may use the leave for Safe and Sick Leave purposes without any conditions prohibited by Safe and Sick Leave law; and
      • A statement that the employer cannot require that employees, or a healthcare or service provider, disclose personal health information or the details of the matter for which an employee requests Safe and Sick Leave, and that the employer must keep information about an employee or an employee’s family member obtained solely because of use of Safe and Sick Leave confidential unless the employee consents to disclosure in writing or disclosure is required by law.
    • Employers must also provide employees with a written disclosure of how much Safe and Sick Leave employees have used and have left each pay period, for example, by stating the information on employee pay stubs.
       
  • Provision and Record of Notice. Employers must adhere to the following notice and recordkeeping requirements:
    • Employers must post the notice in the workplace in an area that is visible and accessible to employees. The updated notice must be posted by January 1, 2021.
    • Employers also must give a written notice of Employee Rights to employees when they begin employment or when their rights change.
      • For employees who were already employed prior to the Safe and Sick Leave provisions that are effective January 1, 2021, employers must provide employees with updated notice of their Safe and Sick Leave rights within 30 days of the January 1, 2021 effective date.
      • According to DCWP’s additional guidance, the following employers must provide the updated notice to employees by January 1, 2021:
        • Employers with 100 or more employees; and
        • Employers of domestic workers.
    • Employees have a right to be given notice in English and, if available on the DCWP website, their primary language.
    • Employers must use a delivery method that reasonably ensures that employees receive the notice, for example, by email.
    • Employers must keep or maintain records establishing the date the notice was provided to employees and proof that the notice was received by the employee, for example, by saving signed copies of the notice or email receipts.