NYC’s New “Protected Time Off” Rules Take Effect July 23, 2026: What Employers Need to Know

The New York City Department of Consumer and Worker Protection (DCWP) has finalized new rules (the “Rules”) implementing the recent amendments to the New York City Earned Sick and Safe Time Act (“ESSTA”), which we previously discussed here. The Rules, effective July 23, 2026, expand upon the ESSTA amendments to address important topics including the new 32-hour unpaid sick/safe leave requirement.  Importantly, the Rules also clarify several open issues that the ESSTA amendments left unanswered.  

New Nomenclature: “Sick/Safe Time” Becomes “Protected Time Off”

The Rules replace the term “safe/sick time” with “protected time off” and confirm that “protected time off” carries the same meaning as “safe/sick time” under the ESSTA.

“Immediately Available” Hours: A Key Clarification for Exempt Employees

The Rules introduce the term “immediately available hours” to describe the newly required 32 hours of unpaid protected time off that must be available for use at the start of employment and at the beginning of each subsequent year. This new terminology likely responds to employer concerns about satisfying the “unpaid” leave requirement for exempt, salaried employees. The Rules expressly state that employers may satisfy their obligation to provide 32 “immediately available” hours by providing some or all of these hours as paid leave. The Rules also affirmatively state that employers should pay for these 32 hours of immediately available hours when necessary to comply with other legal obligations such as overtime exemptions under state or federal law (i.e., for exempt employees). 

Order of Use: Paid Before Unpaid

When an employee has both paid and unpaid protected time off available, the Rules clarify that employers should provide paid time first unless the employee specifically requests to use unpaid time.

Pay Statement Requirements

Under the ESSTA, employers must notify employees each pay period of the amount of protected time off they have used, accrued, and have available – either through a pay statement or other written documentation. The Rules add that this notice must now differentiate between paid and unpaid protected time off.

The Rules also impose a new end-of-employment requirement for employers who provide these notices electronically. When an employee’s employment ends, such employers must either:

(a) Maintain the employee’s access to the electronic system for six (6) months; or

(b) Provide the employee with a written statement containing the following information for their last pay period, no later than one week after the employee’s final payday: (i) total balance of protected time; (ii) amount of paid and unpaid protected time off available for use; (iii) amount of protected time off accrued during the pay period; (iv) amount of paid and unpaid protected time off used during the pay period; (v) amount of paid prenatal leave used during the pay period; and (vi) total balance of paid prenatal leave.

Remedies for Violations

The Rules clarify minimum relief for certain violations. If an employer maintains an official or unofficial policy or practice of not providing (or refusing to allow the use of) protected time off, the minimum relief must include: (1) application of 32 hours of unpaid protected time off to the affected employee’s balance, plus (2) application of the paid protected time off accruals the employee should have received. Similarly, for prenatal leave violations, if an employer has an official or unofficial policy or practice of not providing (or refusing to allow the use of) paid prenatal leave, the minimum relief must include: (1) application of 20 hours of paid prenatal leave to the employee’s balance, plus (2) monetary relief of $500 per employee for each calendar year the policy or practice was in effect. Additionally, the Rules remove prior references to specific remedies for paid prenatal leave violations, instead deferring to the remedies prescribed under the ESSTA.

Rehire Requirements

The Rules clarify that when an employee separates and is rehired within the same calendar year, the employer must reinstate the employee’s unused balance of unpaid protected time off. The employer must also reinstate the employee’s paid protected time off balance, provided it was not paid out upon separation.

Conclusion

New York City employers should review their sick/safe leave (or “protected time off”) policies and pay statement practices to ensure compliance with these new rules before July 23, 2026. Further, employers should ensure that they continue to provide employees with notices required under the law as described here.  

Mintz’s Employment Practice is available to assist with any questions.

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