New York City Proposed Sick Leave Rules Released for Comment

Author: Melissa Burdorf, XpertHR Legal Editor

April 24, 2014

As promised, New York City's Department of Consumer Affairs (DCA) has published proposed rules that would implement the City's new Earned Sick Time Act (ESTA). Public comments are requested and may be offered at a hearing scheduled for 10:00 a.m. on April 29 in the DCA hearing room at 66 John Street, 11th Floor, New York, New York (more details below).

The proposed rules attempt to clarify provisions of the ESTA and give guidance to both employers and employees on certain provisions. The proposed rules would:

  • Provide a methodology for a new employer to calculate the number of employees it employs (i.e., so that it can determine whether it must provide employees with paid or unpaid leave);
  • Address situations where employees have more than one employer (i.e., joint employers), including liability and compliance issues that stem from these situations;
  • Confirm that the ESTA's protections apply to all employees without regard to their immigration status;
  • Explain what may constitute a reasonable minimum increment of leave (i.e., four hours) that an employer may require an employee to take when using sick time;
  • Establish parameters for employer policies that require employees to provide reasonable notice prior to taking sick time, both in planned and unplanned circumstances;
  • Clarify the rules surrounding an employer's request for written documentation of an employee's need for sick time, if the employee is absent for more than three consecutive work days;
  • Address accrual of sick time for domestic workers;
  • Address the rate of pay for paid sick leave for certain employees (e.g., tipped or commission-based employees);
  • Provide rules surrounding when employees must be paid for their use of sick time;
  • Address what happens to an employee's accrued sick time after an employer sells, transfers or otherwise assigns its business to another employer and the employee continues to work for that business;
  • Establish requirements relating to the distribution or posting of employer sick leave policies;
  • Clarify the requirements in the ESTA relating to the DCA's access to employer records, including what constitutes appropriate notice of the DCA's request;
  • Provide examples of situations in which the DCA will issue a Notice of Violation to an employer;
  • Establish a time period in which an employer can correct violations relating to its failure to respond to a complaint or provide records; and
  • Provide examples of situations in which the DCA may conduct an investigation of an employer's employment practices on its own initiative.

When asked about the proposed Rule, Jill Lowell, an experienced employment attorney from Littler's New York office said:

While the proposed rules and the frequently asked questions recently published by the DCA attempt to clarify some of the confusion surrounding the ESTA, there is still much to be desired.

Employers with employees who work in New York City that have specific concerns regarding the ESTA or any part of the proposed rules may attend the public hearing. Employers that wish to speak at the hearing must sign up in advance (employers may speak for up to three minutes) by calling: 212-436-0186 or they may sign up on April 29th in the hearing room. Those that cannot attend may submit comments by any of the following methods:

  • The New York City rules website;
  • Email to: Rulecomments@dca.nyc.gov;
  • Mail to: Ricky Wong, Assistant Commissioner for Community and Governmental Relations, DCA, 42 Broadway, 8th Floor, New York, New York 10004; or
  • Fax to: 646-500-5962.

Written comments may be submitted no later than 5:00 p.m. on the day of the hearing. Comments submitted may be reviewed on the New York City rules website.