On September 15, 2023, the New York City Department of Consumer and Worker Protection (“DCWP”) issued a final rule (“Final Rule”) on the City’s Earned Safe and Sick Time Act (“ESSTA”).

As summarized below, the Final Rule provides some clarification on various compliance issues such as coverage, required notice of usage, supporting documentation that can be requested, the rate of pay for usage, written policy requirements, pay statement requirements and penalties.

Recap of ESSTA

Under the ESSTA, employees may use safe/sick time for various reasons. Depending on the size and net annual income, employers must provide their employees up to 40 hours or 56 hours of paid safe/sick time each year. In particular:

• Employers with at least 100 employees must provide up to 56 hours of paid safe/sick time each year;
• Employers with fewer than 100 employees must provide 40 hours of paid safe/sick time;
• Employers with up to four employees must provide 40 hours of paid safe/sick time if the company had net income of at least $1 million in the previous tax year; and
• Employers with up to four employees with a net income of less than $1 million in the previous tax year must provide 40 hours of unpaid safe/sick time.

Although the employer size is a significant premise in determining the amount of safe/sick time, the law leaves the question of how to calculate the employer size open.

As COVID-19 greatly impacted where employees physically worked, the ESSTA did not address the question of who...

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