On September 20, 2018, the Department of Consumer Affairs Office of Labor Policy and Standards made further amendments to the New York City Earned Sick Time Act. The various areas that the OLPS have amended or further clarified are notice and policy requirements, joint employer information, and calculating rates of pay.
Under ESSTA, employers must maintain a written sick and safe time policy. The amendments clarify and/or expand the written policy requirements, as follows:
It is no longer sufficient merely to post the policy and other required notices. Employers now must distribute the policy and notices to employees when;
◦ a new hire commences employment,
◦ if the employee requests a copy, and
◦ within 14 days before a change to the policy becomes effective.
Reminder! Covered employers are required to provide covered employees with a new notice of their rights under ESSTA by June 4, 2018 and must distribute the notice to new hires when they commence employment. Employers may use the Notice of Employee Rights created by the New York City Department of Consumer Affairs.
The following information must be included in the written policy:
• Method of Calculation and Carryover: The policy must state whether safe and sick time is accrued throughout the year or frontloaded at the beginning of the year. If accrued, the policy must specify when the accrual starts, the rate of accrual, and the maximum number of hours an employee may accrue in a year. The policy also must state whether sick leave is carried over.
• Restrictions on Use: The policy must state any requirement to provide notice to the employer for foreseeable safe and sick time use, which may be no more than seven days prior to the leave. Additionally, the policy must state any requirement for written documentation, which may only be requested after three consecutive days of absence. Finally, the policy must state the minimum increments of use. Employers may set the initial minimum increment at four hours, with 30-minute increments thereafter.
• Statement on PTO Policy (where applicable): If an employer provides PTO for use as safe and sick time, or uses another term besides “safe/sick time” or “safe and sick time’’ to describe leave provided pursuant to ESSTA, the rules now require that the employer’s policy must state that such leave may be used by an employee for any of the purposes set forth under ESSTA without any condition prohibited by ESSTA. Thus, if an employer uses a PTO policy, or allows employees to use vacation to satisfy ESSTA, the policy now needs to clarify that PTO or vacation can be used for any of the ESSTA purposes and under the same circumstances.
• Statement on Confidentiality: Adding another new requirement to the policy mandates, the rules instruct that the policy must include, at a minimum, details of the confidentiality requirements.
The rules clarify a few issues pertaining to joint employers, including the following:
• Generally, joint employers are individually and jointly liable for compliance with all applicable provisions of ESSTA, including satisfying fines and making restitution. However, in discharging their joint obligations, joint employers may decide among themselves how they will allocate responsibility for complying with ESSTA’s requirements.
• With respect to determining the number of employees a joint employer has, every employee whom the joint employer “employs for hire or permits to work, whether joint or not,” must be counted. Thus, as the rules illustrate, “a joint employer who employs three workers from a temporary help firm and also has three permanent employees under its sole control has six employees for purposes of the OLPS laws and rules.”
• If two or more joint employers employ an employee, all of the employee’s work for each of the joint employers must be considered as a single employment for purposes of accrual and use of ESSTA time.
Calculating Rates of Pay: The rules delete provisions about how to calculate payment for safe and sick time when an employee is paid on a piecework basis, and they add a provision on how to calculate payment for safe and sick time when an employee is paid a flat rate.
The OLPS also updated their FAQs document. Please click here to review.
Thank you for choosing Paylocity as your Payroll Tax partner. Should you have any questions please contact your Paylocity Account Manager.
This information is provided as a courtesy, may change and is not intended as legal or tax guidance. Employers with questions or concerns outside the scope of a Payroll Service Provider are encouraged to seek the advice of a qualified CPA, Tax Attorney or Advisor.