John H. Chun, Partner

As previously noted at the beginning of the year (and covered by Herrick's prior alert), certain changes to the New York City Earned Safe and Sick Time Act ("ESSTA") went into effect on February 22, 2026. These changes expanded benefits to employees in several areas: (1) providing 32 hours of unpaid safe/sick leave to new employees upon hire and to all employees at the beginning of each benefit year, in addition to the required paid safe/sick leave; (2) expanding the categories for which employees can use safe/sick leave; and (3) codifying paid prenatal leave into New York City law.

Now, additional Rules and FAQs have been published offering further developments and guidance of which New York City employers should be aware ("protected time off" as used in the City's guidance refers to both paid and unpaid safe/sick leave). The primary takeaways from the Rules and FAQs are as follows:

Changes Applicable to Safe/Sick Leave

• Notice of Employee Rights: employers must fill in their "Calendar Year" in this notice and then both post in the workplace and distribute to each NYC employee.
  • The law requires employers to keep or maintain records establishing the date the Notice was provided to an employee and proof that the Notice was received by the employee.
  • Additionally, employers must tell employees how much protected time off they have accrued, used, and have available for use. This information must appear on pay stubs or other documentation provided to employees each pay period ("pay statement"). Specifically, the pay statement must note:
    • the amount of protected time off accrued during the pay period;
    • the amount of paid and unpaid protected time off used during the pay period;
    • the amount of immediately available hours of unpaid protected time off available for use in the Calendar Year; AND
    • the amount of accrued protected time off available for use in the Calendar Year.
       
• Determining Size of Employer: When determining the amount of paid safe/sick leave that must be provided based on employer size, employers must count all employees nationwide, and employer size is determined by counting the highest total number of employees employed at the same time at any point during the Calendar Year to date, including:
  • temporary and seasonal employees;
  • part-time employees;
  • employees jointly employed by more than one employer; AND
  • employees on paid or unpaid leave.
     
• Change in Employer Size
  • Increase: If employer size increases from fewer than 5 to between 5 and 99 employees, the employer's duty to provide paid safe/sick leave begins on the date of the increase. Similarly, if employer size increases from 99 or fewer to 100 or more employees, an employee's right to use additional paid safe/sick leave —up to 56 hours versus up to 40 hours—starts on the date of the increase.
  • Decrease: Any decrease in the total number of employees does not reduce the number of paid safe/sick leave hours employees are entitled to until the following Calendar Year.
     
• Employers located outside New York City must provide protected time off to employees who work in New York City. Similarly, an employee with a primary work location outside New York City is covered by the law if the employee regularly performs, or is expected to regularly perform, work in New York City. However, only hours worked in New York City count toward the accrual of protected time off under the law. An employer must allow employees to use their accrued paid safe/sick leave and their 32 immediately available hours of unpaid safe/sick leave when they are scheduled to work in New York City.
   
• Broad interpretation of "family member," which includes:
  • Child (biological, adopted, or foster child; legal ward; child of an employee standing in loco parentis)
  • Spouse
  • Registered domestic partner
  • Parent (biological, foster, stepparent, or adoptive parent; the employee's legal guardian; or a person who took on the responsibilities of being a parent when the employee was a minor)
  • Child or parent of an employee's spouse or domestic partner
  • Grandchild or grandparent
  • Sibling (half, adopted, or stepsibling)
  • Any other individual related by blood to the employee
  • Any other individual whose close association with the employee is the equivalent of a family relationship
     
• Minimum Increments: the law allows employers to set a reasonable minimum increment for the use of safe/sick leave, but this minimum:
  • cannot be more than 4 hours per day;
  • must be reasonable under the circumstances; AND
  • must be explained in the employer's written protected time off policy

Paid Prenatal Leave

• Employers must provide employees with a separate bank of 20 hours of paid prenatal leave each year.
   
• Paid prenatal leave does not accrue. Employees automatically have 20 hours available for use as of their first date of employment. Employees can use 20 hours of paid prenatal leave every 52 weeks. The 52-week period begins on the first day an employee uses paid prenatal leave. Paid prenatal leave does not carry over from year to year, but can be used for more than one pregnancy during the 52-week period.
   
• Additionally, for each pay period that an employee uses paid prenatal leave, the employer must inform the employee of the amount of paid prenatal leave used during the pay period and the total balance available for use, either on the employee's pay statement or other form of written documentation.
   
• Only the employee directly receiving health care for their pregnancy can use paid prenatal leave. An employee who is not the pregnant parent cannot use paid prenatal leave to attend the pregnant parent's prenatal appointments. However, an employee can use protected time off to attend a family member's prenatal appointment.
   
• Employers can set a reasonable minimum increment for the use of paid prenatal leave, but this minimum:
  • cannot be more than 1 hour per day;
  • must be reasonable under the circumstances; AND
  • must be explained in the employer's written paid prenatal leave policy.

Changes Applicable to Both Safe/Sick Leave and Paid Prenatal Leave

• Advance Notice from Employee: An employer may require an employee to provide reasonable notice of the employee's foreseeable need to use time off. Any advance notice requirement and how to provide notice must be explained in the employer's written policies, which cannot require more than seven days' advance notice. When the need to use leave is not foreseeable, employers cannot require advance notice but may require notice as soon as practicable under the circumstances. An employer that requires such notice of an unforeseeable need to use time off must explain in the employer's written policies how the employee should provide notice. For example, an employer may instruct employees to contact a designated phone number or email address. The notice procedure must be reasonable.
   
• Documentation:
  • An employer may require an employee using time off to provide documentation, but only if:
    • the employee uses more than three consecutive workdays of safe/sick leave or paid prenatal leave; and
    • only if that requirement is in the written policies that the employee received prior to using the leave, which must explain:
      • the types of reasonable written documentation the employer will accept;
      • instructions on how employees should submit documentation to the employer;
      • any policy to delay payment for protected time off until documentation is submitted; AND
      • instructions on how employees can submit requests for reimbursement of fees or costs to obtain documentation.
  • Any documentation or confirmation requirement and consequence of noncompliance must be explained in the employer's written policies. If the employee provides documentation, the employer cannot require a second opinion.
  • If an employer requires an employee to submit written documentation, the employer must give the employee at least seven (7) days from the date the employee returns to work to submit the documentation. An employer cannot require employees to submit their documentation before the employee returns to work, unless some other applicable law (e.g., FMLA) allows the employer to require medical clearance before an employee returns to work.
  • An employer cannot require an employee or the person providing documentation – for example, the employee's health care or social service provider – to disclose the reason for the use of time off.
  • Where time off is for a health reason, any written documentation signed by a licensed health care provider, including a social worker or mental health counselor, that indicates the need for the amount of time taken must be considered reasonable documentation and accepted by the employer.
  • For non-health-related protected needs, any of the following documentation indicating the need for the amount of time taken must be considered reasonable documentation and accepted by the employer:
    • a letter from a school or daycare;
    • a letter from a services provider, such as an attorney, a member of the clergy, a court or government agency, a medical provider, or another social services provider;
    • a record from the police, a government agency, or a court; or
    • a notarized letter from the employee confirming that leave was used for permitted purposes.
  • An employer can require the employee to confirm in writing that the employee used time off for permitted purposes (even if the time off was three days or fewer). However, the employer cannot require the employee to provide documentation from a third party if the employee did not use time off for more than three consecutive workdays.
     
• Discipline: an employer may take disciplinary action, up to and including termination, against an employee who uses safe/sick leave or paid prenatal leave for purposes other than those provided for under the law. However, a mistaken use of safe/sick leave or paid prenatal leave does not qualify as misuse and is protected from retaliation. An employer must include any policy on discipline for misuse of safe/sick leave or paid prenatal leave in its written policies.

New York City employers should review their policies and procedures to ensure compliance with these newer Rules and FAQs, update any presentations and handbooks given to employees to make them aware of these additional benefits, and to train all human resources professionals and supervisors on these new requirements.

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For more information about this issue or other employment matters, please contact:

Carol M. Goodman at +1 212 592 1465 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]
Basil C. Sitaras at +1 212 592 1572 or [email protected]
Pamela A. Frederick at +1 212 592 1591 or [email protected]

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