NYC Sick Leave Law Amendments Prompt New Employer Obligations

Recent amendments to New York City’s Earned Sick and Safe Time Act (ESSTA) went into effect this month. Consistent with recent amendments to New York State law (which we discussed here and here), the City’s amended leave law now explicitly requires NYC employers to provide up to 20 hours of paid prenatal leave for eligible employees within a 52-week period and seeks to integrate related paid prenatal leave obligations into the existing ESSTA compliance framework for safe/sick time. The amendments also clarify the available penalties, remedies, and enforcement mechanisms for violations of the paid prenatal leave requirements. 

We summarize below the new obligations NYC employers have under the amended ESSTA.

Paid Prenatal Leave Basics

Paid prenatal leave, which is now required under both New York State and New York City law, is paid time off that eligible employees can use for health care purposes during pregnancy or related to such pregnancy. Employees may use such leave for their own prenatal-related purposes, including prenatal physical examination and medical procedures, pregnancy monitoring and testing, fertility treatments, and end of pregnancy care. Spouses, partners, and other individuals aside from the pregnant employee are not entitled to use paid prenatal leave. 

Importantly, employers must provide paid prenatal leave in addition to any regular sick and safe leave time employees are otherwise eligible to use. 

NYC Employers Must Distribute an Updated Notice of Employee Rights

Given the recent amendments, NYC employers must distribute an updated Notice of Employee Rights which includes new information about paid prenatal leave. The notice is available on the City’s website here. The notice must be posted in a conspicuous place and provided to employees, including in any language spoken as a primary language by at least 5% of employees at the employer’s location, if the City makes a translated notice available in such language (translations are available here).

Record Maintenance and Written Documentation Requirements

The ESSTA amendments specify that NYC employers must create and retain records for a period of 3 years showing employees’ total balance of paid prenatal leave per pay period and any amounts used each pay period. For each pay period in which an employee uses paid prenatal leave, employers must also provide employees with a pay statement or other written documentation showing the amount of paid prenatal leave used during the relevant pay period and the employee’s balance of paid prenatal leave available for use. Employers should consider working with their payroll providers to ensure future pay statements incorporate this new information. 

Written Policy Updates and Distribution Requirements 

The NYC amendments require employers to maintain written policies regarding paid prenatal leave in addition to sick and safe time. The ESSTA amendments clarify that employers may set a minimum increment of one hour per day for the use of paid prenatal leave, provided that such increment is reasonable under the circumstances. An employer’s written policy must address any minimum increment rules the employer will adopt, as well as any other lawful restrictions the employer will implement as to the availability of paid prenatal leave and any other requirements around leave usage (such as notice procedures and an explanation of any disciplinary actions that may occur for misuse). 

Employers must distribute their updated written sick and safe leave and paid prenatal leave policies to employees within 14 days of the effective date of any policy changes, upon new employee hires, and upon an employee’s request.

Penalties and Remedies for Violations

As with the pre-amendments ESSTA, employees may be entitled to a range of remedies in both court and before the NYC Department of Consumer and Worker Protection (DCWP) for violations of the new ESSTA paid prenatal leave requirements. Available remedies may include lost wages, liquidated damages, and “all appropriate relief” for instances of retaliation. The DCWP is also entitled to seek various penalties against non-compliant employers, such as a penalty of up to $10,000 for retaliation and a penalty of $500 per violation for failure to pay wages owed.

Mintz’s Employment Practice is available to assist NYC employers with any policy revisions and questions related to the ESSTA amendments.

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