As we reported HERE, effective February 22, 2026, amendments to the NYC Earned Safe and Sick Time Act (ESSTA) expand qualifying reasons for leave, broaden leave entitlements, and transfer obligations under the Temporary Schedule Change Act to the ESSTA.
Ahead of the effective date, the NYC Department of Consumer and Worker Protection issued proposed rules to implement the changes, particularly, with respect to the ESSTA’s new 32-hour bank of unpaid leave. Among other things, the proposed rules would impose more onerous wage statement notice and recordkeeping obligations, create new written policy requirements, and incorporate additional penalties for noncompliance. Read on for an overview of the key clarifications in the proposed rules on the ESSTA amendments.
- Terminology: “Safe/Sick Time” renamed to “Protected Time Off”: The proposed rule states that the term “protected time off” has the same meaning as “safe/sick time” as defined in the amendments.
- Additional Written Policy Requirements: The proposed rules require employers to include in their written safe/sick leave policies additional information regarding the 32-hour unpaid leave bank required by the amendments.
- Additional Pay Statement Notice Requirements: The proposed rules would require employers to include on pay statements (or electronic systems used to issue pay statements or related documentation) additional information regarding unpaid leave time under the 32-hour bank. Specifically, the proposed rules would require employers to differentiate between paid and unpaid time off when providing the total balance of the employee’s protected time off available for use.
- Additional Recordkeeping Requirements: The proposed rules would require employers to maintain pay-period records for each employee showing: protected time off accrued, protected time off used (separately tracking paid and unpaid time); the employee’s total balance; and the amount available for use (distinguishing between paid and unpaid time). For any pay period where an employee uses paid prenatal leave, the proposed rules would require employers to record the amount used and the employee’s remaining annual balance of the 20 hours of paid prenatal leave available.
- Providing Protected Time Off Under the 32-Hour Bank: The proposed rules clarify that if an employee is absent for an ESSTA-qualifying reason and has both paid and unpaid protected time off available, the employer must apply paid protected time off unless the employee requests unpaid time.
- Fulfilling 32-Hour Bank Unpaid Requirement by Frontloading Excess PTO: The proposed rules provide that if an employer offers PTO in excess of what is required by the ESSTA, the employer may use the excess PTO to fulfill the obligation to provide 32 hours of unpaid leave so long as the excess PTO (a minimum of 32 hours) is available upon hire and at the start of each calendar year.
- No Carryover of Unpaid Protected Time Off: The proposed rules state that an employer is not required to carry over the unused portion of the immediately available hours of unpaid protected time off from one calendar year to the next.
- Reasonable Documentation for Protected Time Off: The proposed rules state that for any use of protected time off—including unpaid leave under the 32-hour bank—documentation shall be considered reasonable if it shows the reason for the amount of time taken. Thus, consistent with the amended law, the proposed rules make clear that employers may not require details beyond the dates needed for time off.
- Additional Penalties: The proposed rules clarify that the following penalty applies to failure to provide unpaid leave under the 32-hour bank and/or failure to provide paid prenatal leave: $500 per employee per calendar year the policy or practice was in effect.
Employer Takeaways
A public hearing will be held on the proposed rules on March 2, 2026, and comments must be submitted on or before that date. In the meantime, employers can prepare for compliance with the amended law and proposed rules by taking the following steps:
- Revise safe/sick time policies to add a 32-hour unpaid leave bank.
- Update payroll and recordkeeping systems to separately track paid and unpaid leave.
- Train appropriate personnel on requirements related to the 32-hour unpaid leave bank and 20 hours of paid prenatal leave.
- Monitor for updates on the proposed rules.
If you have any questions related to the ESSTA amendments or proposed rules, or need assistance reviewing safe and sick time policies, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.