Tag: unpaid leave

A slightly tired employee sitting at home, holding a phone to their ear to report being sick and unable to work, illustrating responsible sick leave under New York City’s ESSTA requirements.

NYC Earned Safe and Sick Time Act Expands in 2026

On September 25, 2025, the New York City Council approved major amendments to the NYC Earned Safe and Sick Time Act (ESSTA) and the Temporary Schedule Change Act (TSCA). The changes take effect February 22, 2026, and expand NYC employees’ rights to take both paid and unpaid leave for new categories of personal and family needs.

Legal Changes to NYC Safe and Sick Time

The NYC Council’s 2025 legislation (Int. 780-A) builds on the City’s long-standing earned sick and safe time requirements. The measure broadens the list of qualifying reasons for employees to take leave under ESSTA, while simultaneously repealing the separate Temporary Schedule Change Act and folding many of its protections into the ESSTA framework.

Under the new law, employees may use safe and sick time not only for their own or a family member’s illness, preventive care, or safe-time situations (such as domestic violence), but also for additional qualifying reasons, including:

  • Providing care for a child or a care recipient;
  • Attending a legal proceeding for subsistence benefits or housing;
  • Responding to a public disaster; and
  • Respond to workplace violence.

The New York City Department of Consumer and Worker Protection (DCWP) is expected to issue updated rules and forms before the February 2026 effective date to clarify how employers should apply these new qualifying reasons, particularly those involving “public disasters,” “workplace violence,” and care for “care recipients.”

A blue-tinted view of the New York City skyline with a transparent calendar graphic showing February 22, 2026, symbolizing the effective date of new Earned Safe and Sick Time Act amendments.
February 22, 2026 – New York City’s expanded Earned Safe and Sick Time Act takes effect.

Additional Unpaid Leave

Beyond the existing paid sick and safe time requirements, the amended NYC Earned Safe and Sick Time Act mandates that employers provide 32 hours of unpaid safe and sick time to every employee each year. This unpaid allotment must be made available upon hire and then front-loaded annually on each employee’s work anniversary or on a calendar-year basis.

The law thus introduces a new compliance complexity. Employers must now track both paid and unpaid safe/sick time balances for each employee in NYC.

Interaction with the Temporary Schedule Change Act

Currently, the TSCA allows employees to request temporary schedule changes for certain personal events. Beginning in February 2026, that separate law will be repealed. However, employees will continue to have the right to take time off for similar reasons through ESSTA. In practice, this simplifies administration by consolidating all short-term personal and family leave obligations into one statute.

Illustration of a clock and calendar merging into a single folder labeled “ESSTA,” symbolizing New York City’s integration of the Temporary Schedule Change Act into the Earned Safe and Sick Time Act.
New York City has consolidated temporary schedule change rights into the broader ESSTA framework.

Paid Prenatal Leave

The same legislation also introduces 20 hours of paid prenatal leave each year for employees covered by ESSTA. This addition is distinct from the City’s safe and sick time rules but appears in the same legislative package, signaling a broader City initiative to support family and reproductive health needs.

New York State law already separately requires 20 hours of paid prenatal leave annually. So the practical impact of this NYC amendment is likely to be minimal.

Compliance Steps for Employers

Photo of a compliance checklist titled “Employer Compliance Steps” with a New York City skyline in the background, symbolizing the steps employers must take to comply with the 2026 ESSTA amendments.
Employers should review policies, train managers, and update systems to comply with the 2026 ESSTA changes.

Employers operating in New York City should begin preparing now. Steps to take before the February 2026 effective date include:

  1. Review and update existing sick-leave and time-off policies to ensure the new qualifying reasons and unpaid-time provisions are included.

  2. Reconfigure payroll and HR systems to track both paid and unpaid ESSTA time separately.

  3. Train managers and HR staff on the expanded employee rights and the proper process for handling requests.

  4. Update required employee notices and postings once the DCWP issues revised forms and guidance.

  5. Coordinate state and city compliance, since the state NYS Paid Sick Leave Law still applies statewide.

Employers should monitor the DCWP’s Paid Safe and Sick Leave page for updated rules and required forms.

What Expanded NYC Earned Safe and Sick Time Means for Employers

The February 2026 changes mark the most sweeping update to New York City’s leave laws in several years. By expanding qualifying reasons, introducing an unpaid component, and integrating temporary schedule change rights into ESSTA, the City has created a unified framework for short-term employee absences.

Although this amendment applies only to NYC, employers elsewhere in the state should take note. The NYS Legislature has often followed NYC’s lead on similar workplace requirements. Remember, NYC had paid sick leave first before it was mandated statewide.

Employers who act early by revising policies, updating systems, and training supervisors will be well-positioned to comply and avoid penalties once the new law takes effect.

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Lawful Absences

New York Expressly Forbids Retaliation for Lawful Absences from Work

On November 21, 2022, Governor Hochul signed an amendment to the New York Labor Law to enhance employee protections against retaliation. The amendment adds an express prohibition of retaliation for any lawful absences from work. The amendment takes effect on February 19, 2023.

New York Labor Law Section 215

Section 215 of the New York Labor Law generally prohibits private (non-governmental) employers from discriminating against employees for engaging in a wide array of protected activities. Before this amendment, these protected activities included:

  • Making a complaint that the employee’s employer has engaged in conduct that the employee reasonably and in good faith believes violates any provision of the Labor Law or order of the Commissioner of Labor;
  • Being perceived by the employer as having made such a complaint;
  • Instituting a proceeding under or related to the Labor Law;
  • Providing information to the Department of Labor or the Attorney General;
  • Testifying in an investigation or proceeding under the Labor Law;
  • Exercising other rights protected by the Labor Law;
  • Being the subject of an adverse determination from the Commissioner of Labor against one’s employer.

Employees may file retaliation claims in court or with the Commissioner of Labor. Penalties can include repayment of lost wages; liquidated damages; and civil penalties of $1,000 to $10,000 for the first offense and up to $20,000 for the second offense. Violation of Section 215 also constitutes a class B misdemeanor.

Amendment Addressing Lawful Absences

The amendment expands the definition of protected activity to prohibit retaliation because an “employee has used any legally protected absence pursuant to federal local, or state law.”

Unfortunately, this new language is vague. If read broadly, as the Legislature likely intended, it will encompass numerous paid and unpaid leave laws, including:

  • New York Paid Sick Leave
  • New York Paid Family Leave
  • New York Paid COVID-19 Leave
  • New York Paid Vaccine Leave
  • Family and Medical Leave
  • Other specific New York Leaves, such as:
    • Blood Donation Leave
    • Bone Marrow Donation Leave
    • Military Spouse Leave
    • Witness and Victims of Crime Leave
    • Volunteer Emergency Response Leave
    • Jury Leave
    • Voting Leave

Employees are also often allowed time off while receiving workers’ compensation or disability benefits or as an accommodation under the Americans with Disabilities Act and New York Human Rights Law. None of these legal authorities specifically grants employees time off from work. However, it is plausible that Labor Law Section 215 will be interpreted to include leaves under these circumstances.

No-Fault Attendance Policies

Many employers apply attendance policies that allocate points on an employee’s record for each absence. Commonly, these policies apply regardless of the purpose or reason for the absence. Such policies are known as “no-fault” attendance policies. Whether the reason for the absence matters or not, point-based policies result in pre-specified employment consequences when employees reach certain levels.

The amendment to Labor Law Section 215 adds a specific prohibition against “assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include but not be limited to failure to receive a promotion or loss of pay.”

Practical Impact

It is arguable whether this amendment really expands worker protections. Generally speaking, various laws would likely already prohibit adverse employment action against employees for taking lawful absences from work. Section 215 itself probably already would have applied in many such situations.

But the Legislature at least intends to shed light on the subject and potentially increase available penalties. Accordingly, New York employers should review existing policies and practices regarding their handling of lawful absences by employees. Moreover, managers must understand the types of absences that may be protected under applicable laws.

 

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New York Paid Sick Leave Law

New York Paid Sick Leave Law Applies to All Private Employers

On April 3, 2020, Governor Andrew Cuomo signed 2021 budget legislation that included sick leave for employees throughout New York. In addition to illnesses and injuries, the leave is available for circumstances related to domestic violence. Employees begin accruing sick leave on September 30, 2020, and may use it starting January 1, 2021. New York paid sick leave benefits vary based on the size of the employer.

The law only applies to private (non-governmental) employers. New York public entities, such as municipalities and school districts, are not covered.

Leave Requirements Depend on Business Size

“Small” Employers

Employers with up to 4 employees must provide employees with at least 40 hours of unpaid sick leave each year.

However, employers of this size who had net income over $1 million in the previous tax year must pay employees for this leave.

“Medium” Employers

Employers with between 5 and 99 employees must provide employees with at least 40 hours of paid sick leave each year.

“Large” Employers

Employers with 100+ employees must provide employees with at least 56 hours of paid leave each year.

Sick Leave Accrual

Employees are eligible to accrue sick leave at a rate of not less than 1 hour per 30 hours worked. Employees begin accruing Sick Leave on September 30, 2020, or upon hire after that.

Employers can provide all of the leave at the beginning of the year if they prefer.

When Can Employees Take New York Paid Sick Leave?

Eligible employees may take accrued sick leave for any of these reasons:

  • Mental or physical illness, injury, or health condition of either an employee or an employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time employee requests leave.
  • Diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of, or need for medical diagnosis of, or preventative care for either the employee or an employee’s family member.
  • Absences related to domestic violence, as described below.

Absences Related to Domestic Violence

If an employee or an employee’s family member is a victim of either domestic violence, a family offense, sexual offense, stalking, or human trafficking, the employee may use available New York sick leave for time off to:

  • Obtain services from a domestic violence shelter, rape crisis center, or other services program;
  • Participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or their family members;
  • Meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
  • File a complaint or domestic incident report with law enforcement;
  • Meet with the district attorney’s office;
  • Enroll children in a new school; or
  • Take any other actions necessary to ensure the health or safety of the employee or a family member or to protect those who associate or work with the employee.

Covered Family Members

Employers must use the following definitions to determine an employee’s eligibility for New York paid sick leave.

“Family Member” includes the employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent. It also includes a child or parent of an employee’s spouse or domestic partner.

“Parent” means a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in a legal parental role when the employee was a minor.

“Child” means the biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Calculating the Number of Employees to Determine Leave Allowance

The law instructs employers to use the number of employees who are employed by the company in the calendar year between January 1 and December 31 to determine how much leave they must provide to employees. This calculation is likely to confuse employers because total headcount typically varies throughout any one calendar year due to business needs, employer terminations, and voluntary resignations. Therefore, we anticipate that Department of Labor regulations will later clarify how an employer should calculate its size.

Employers may provide employees with additional sick leave beyond what the law requires.

Confidentiality Requirements

Employers must keep information about employees’ health and incidents of domestic violence, sexual offense, stalking, or human trafficking confidential. The New York paid sick leave law prohibits employers from requiring employees to disclose such confidential information in order to take accrued sick leave.

Sick Leave Increments and Carryover

Employers can require employees to take sick leave in reasonable increments. The minimum increment may not exceed 4 hours. Sick leave must be paid at either the employee’s regular rate of pay. (Or at minimum wage, if their regular pay rate is somehow lower.)

Accrued and unused sick leave may be carried over to the following year. An employer with less than 100 employees can restrict the use of accrued sick leave to a maximum of 40 hours per calendar year. Employers with 100 or more employees may have a policy that restricts the use of accrued sick leave to a maximum of 56 hours per calendar year.

Employers are not required to pay out accrued and unused sick leave upon termination of employment. However, they must notify employees if they do not plan to pay out unused leave.

Returning to Work

Employees have a right to return to the same position with equal compensation after sick leave. Employers may not retaliate against an employee for requesting or using accrued sick leave. Retaliation includes discharging, threatening, penalizing, or discriminating against an employee for exercising their rights under the law.

Recordkeeping

The law requires New York employers to keep payroll records documenting the amount of sick leave provided to each employee for a minimum of 6 years.

Upon request from an employee, an employer must give a summary of all used and accrued sick leave for the current and any previous years. Employers have 3 days to comply with such requests.

Employer Alternatives to Mandatory Sick Leave

Employers can satisfy the New York paid sick leave requirements through an alternative leave policy. However, the policy must offer at least as many hours and as beneficial of an accrual rate and carryover rules as the law requires. And employees must be able to use the leave for all of the reasons allowable under the law.

Employers with unions can negotiate alternatives to the New York paid sick leave requirements. The agreement must have been entered on or after September 30, 2020, and provide “a comparable benefit.” It also must specifically “acknowledge” the New York paid sick leave law.

Existing Sick Leave Requirements

The state law specifically allows that New York City may continue to enforce its existing sick leave law or amend it. But the NYC law must meet or exceed the New York paid sick leave law’s requirements.

The same provision says that “any paid sick leave benefits provided by a sick leave program enforced by a municipal corporation in effect as of the effective date of this section shall not be diminished or limited as a result of the enactment” of the New York paid sick leave law. This language seems to refer to local laws outside of New York City, such as the Westchester County paid sick leave law. But the language is somewhat ambiguous. It will be important to see how the Department of Labor clarifies the provision through its anticipated regulations.

Anticipated Regulatory Guidance

The Commissioner of Labor can adopt regulations for the enforcement of this new sick leave law. It is almost certain that regulations will be issued before the law’s September 30, 2020 effective date. Employers will need to rely on such guidance in reviewing their existing policies for compliance or to create new sick leave programs.

Get Ready To Comply

For now, employers should begin reviewing their current leave policies. One option will be to plan to transition to a paid-time-off policy that combines sick leave, vacation, and any other paid leave. This approach will be the easiest way for many employers to comply with the law while limiting the cost of additional paid leave.

However, employers should not expect to finalize their policies until the Department of Labor issues its regulations. These will likely answer many pertinent questions that will help determine the right approach for your organization.

These new sick leave requirements may prove particularly problematic for employers with existing collective bargaining agreements. They may need to either provide additional sick leave per the law on top of existing benefits or seek renegotiation of existing policies as soon as possible for a new agreement to take effect no earlier than September 30, 2020.

 

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