Last November, we posted an article on significant changes to the New York City Earned Safe and Sick Time Act (“ESSTA”) which added even more time off rights for New York City employees. These changes were adopted in the fall of 2025 and took effect on February 22, 2026. Our previous article can be found on our website or by clicking this link (New York ESSTA (Earned Safe and Sick Time Act) | Florence Rostami Law, LLC).
The amendments to the ESSTA directed the New York City Department of Consumer and Worker Protection (the agency that enforces the ESSTA) to issue rules to guide employers and employees in complying with the new requirements. The agency has just issued its final rules (“Final Rules”), which take effect on July 23, 2026.
First, as a matter of nomenclature, the Final Rules replace the term “safe/sick time” with “protected time off”, which has the same meaning as the former term.
As we previously described, among the changes made by the 2025 amendments to the ESSTA is a requirement that in addition to paid leave for safe, sick and related reasons that employees accrue while employed, employers must provide new employees at the time of hire, and current employees at the beginning of each calendar year, with an additional 32 hours of unpaid leave, which they can use to the extent they do not have paid leave. The term “calendar year” is defined under the ESSTA as a regular and consecutive 12 month period as determined by the employer; it need not be January 1-December 31. The Final Rules state that employers must give the full 32 hours of this unpaid “protected time off” (safe/sick leave) at the time of hire, regardless of when the newly-hired employee will be given leave under the employer’s policy. As an example, if an employer has a policy of crediting vacation and other forms of leave (including safe/sick leave) each January 1, an employee hired in November must be given the full 32 hours of unpaid safe/sick leave as of the date employment commences, even though the employee will be credited with the next annual allotment of leave two months later. But the employer is not required to carry over any portion of the 32 hours of unpaid protected time off into the following calendar year.
The Final Rules also make it clear that employees may use unpaid safe/sick leave for any reason for which they may use paid safe/sick leave. However, if an employee has accrued paid safe/sick leave, the employer may apply the paid leave for the employee’s absence, thereby reducing the amount of unpaid leave to which the employee is entitled, unless the employee specifically requests to use unpaid protected time off. For employers who grant the full annual allotment of paid “protected time off” leave as of commencement of employment and annually thereafter, the unpaid leave provision will have no effect on those employers, since employers will have the ability to use paid leave to those 32 hours. Employers whose policies require accrual of paid “protected time off” leave during each year must be aware of and follow these requirements.
Also, for unpaid leave, the Final Rules make clear that an exempt employee (that is an executive, administrative, or professional employee who is not entitled to overtime pay) must be paid for the time taken for sick or safe purposes if the exempt employee would be entitled to pay under the provisions of other laws. For example, the federal and New York wage laws require that exempt employees must not suffer a loss of salary if they are absent for part of the workday. The Final Rules clarify that even if the exempt employee does not have paid leave to apply toward the part-day absence, the employer may apply the unpaid leave for that absence but cannot reduce the employee’s salary.
Another significant change added by the Final Rules is that if an employee is separated from employment and is rehired within the same calendar year, the employer must reinstate to the rehired employee the unused portion of the unpaid leave in addition to reinstating the accrued, unused paid leave.
In addition to these new requirements, the Final Rules add a new obligation relating to post-employment disclosure of unused unpaid and paid safe/sick leave. This new provision states that starting on July 23, 2026, when an employee’s tenure ends, the employer must provide the departed employee with access to the employer’s electronic time recording system for six months or alternatively provide the employee with a written statement containing the information on accrued leave time that the employer is required to provide to employees on their pay statements. If this information is to be provided in a written statement rather than by permitting access to the employer’s electronic system, the statement must be provided no later than one week after the employee’s last payday and must include:
- The amount of paid protected time off accrued during the pay period;
- The amount of protected time off used during the pay period, differentiating between paid and unpaid protected time off;
- The employee’s total balance of paid protected time off;
- The amount of protected time off available for use by the employee, differentiating between paid and unpaid protected time off;
- The amount of paid prenatal leave used during the pay period; and
- The employee’s total balance of paid prenatal leave.
Employers should consider including in their exit materials to departing employees a statement setting forth the information about leave accruals and the balance of leaves, as this may be easier to administer than to allow former employees access to the employer’s electronic system.
Finally, the Final Rules set forth potential penalties to which employers may be subject if they fail to provide the required 20 hours of paid prenatal leave.
As you can see, following the ever-changing laws relating to employee rights and entitlement can be challenging. If you have questions about this New York City law or any laws relating to employer obligations concerning their employees, please do not hesitate to contact us.