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Paid Safe and Sick Leave Law:
Frequently Asked Questions
COVID-19 Alert
Update about Workplace Laws During COVID-19, available at nyc.gov/workers, includes a
summary of City labor laws for employers and employees as you deal with the impact of
COVID-19 on your workplace.
The Department of Consumer and Worker
Protection (DCWP) Office of Labor Policy &
Standards (OLPS) enforces NYC’s Earned
Safe and Sick Time Act (Paid Safe and Sick
Leave Law) referred to in FAQs as the Law.
These FAQs provide general information and
guidance for employees and employers. They
are not intended to serve as individualized
legal advice.
1
For specific questions, you
should contact your legal advisor.
To contact OLPS:
• Email [email protected]
• Call 311 (212-NEW-YORK outside NYC)
and say “Paid Safe and Sick Leave”
• Use Live Chat, available at
nyc.gov/BusinessToolbox
(employer inquiries only)
• Visit nyc.gov/workers
2
Sections
I. GENERAL QUESTIONS
II. EMPLOYEES COVERED BY THE LAW
III. RIGHT TO AND NOTICE OF SAFE AND SICK LEAVE
IV. USE OF SAFE AND SICK LEAVE
V. HOW SAFE AND SICK LEAVE IS PAID
VI. RETALIATION
VII. EMPLOYER RECORDS
VIII. COMPLAINTS AND ENFORCEMENT
IX. OTHER FEDERAL AND STATE LAWS RELATED TO LEAVE
1
OLPS will update FAQs as appropriate. Please note the date at the bottom of FAQs and check nyc.gov/workers to
make sure you have the most current FAQs.
2
Visit nyc.gov/workers for the law and rules, helpful sample documents, and information about other labor laws
enforced by DCWP.
Updated November 2, 2020 Page 2 of 41
I. GENERAL QUESTIONS
1. When do employers have to start complying with the Law?
The Law went into effect on April 1, 2014. The Law was amended twice:
• May 5, 2018: Safe leave provisions took effect.
• September 30, 2020: Amendments to expand safe and sick leave and to bring the Law
in line with New York State law requirements took effect.
2. What is sick leave?
Sick leave is time off work for health reasons. Covered employees can use sick leave for the
care and treatment of themselves or a family member.
3. What is safe leave?
Safe leave is time off work for safety reasons. Covered employees can use safe leave to seek
assistance or to take other safety measures if the employee or a family member is the victim of
any act or threat of domestic violence, unwanted sexual contact, stalking, or human trafficking.
4. Who is considered a family member under the Law?
The Law has a broad definition of family member that includes the following:
• Child (biological, adopted, or foster child; legal ward; child of an employee standing
in loco parentis)
• Spouse (current or former, and regardless of whether they reside together)
• Domestic Partner (current or former, and regardless of whether they reside together)
3
• Parent
• Child or parent of an employee’s spouse or domestic partner
• Grandchild or grandparent
• Sibling (half, adopted, or step sibling)
• 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
5. Which employers must provide safe and sick leave?
Private, nonprofit, and household employers that employ workers in NYC must provide safe and
sick leave.
Employers with 4 or fewer employees:
• must provide up to 40 hours of unpaid safe and sick leave if the employer’s net income is
less than $1 million in the previous tax year.
• (as of January 1, 2021) must provide up to 40 hours of paid safe and sick leave if the
employer’s net income is $1 million or more in the previous tax year.
3
A “domestic partner” is a person with a domestic partnership registered under Section 3-240 of the New York City
Administrative Code. For more information about the requirements and procedure for registering as domestic
partners, visit the Office of City Clerk website at cityclerk.nyc.gov
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Employers with 5 or more employees regardless of net income:
• must provide up to 40 hours of paid safe and sick leave if the employer employs up to
100 employees.
• (as of January 1, 2021) must provide up to 56 hours of paid safe and sick leave if the
employer employs 100 or more employees.
o Employees may accrue up to 56 hours of paid safe and sick leave as of
September 30, 2020 but are not entitled to use hours 41-56 until January 1, 2021.
Employers of domestic workers:
• must provide up to 40 hours of paid safe and sick leave if the employer employs up to
100 employees.
• (as of January 1, 2021) must provide up to 56 hours of paid safe and sick leave if the
employer employs 100 or more employees.
6. Are nonprofit employers covered by the Law?
Yes. Nonprofit employers are covered by the Law and must comply with its requirements.
7. How is employer size determined?
Employers should count all employees who work for pay on a full-time, part-time, seasonal, or
temporary basis.
Employers that have operated for less than one year:
• Employers should count the number of employees performing work for pay per week.
If the number fluctuates, employer size may be determined for the current Calendar Year
based on the average number of employees per week who worked during the 80 days
immediately preceding the date the employee used safe and sick leave.
Employers that have operated for one year or more:
• Employers should count the number of employees working for the employer per week at
the time the employee used safe and sick leave. If the number of employees fluctuated
between less than five employees and five or more employees three times in the most
recent calendar quarter, employer size may be determined for the current Calendar
Year based on the average number of employees per week during the previous
Calendar Year.
8. What does “Calendar Year” mean?
Under the Law, “Calendar Year” means any consecutive 12-month period of time as determined
by an employer. Most employers will find it helpful to use the same “Calendar Year” that they
use for calculating wages and benefits, such as: tax year, fiscal year, contract year, the year
running from an employee’s anniversary date of employment, or the year running from January
1 to December 31.
Note: Employers must include their Calendar Year in the written Notice they must give
employees. See Section III, starting with FAQ 12.
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9. If the employer is part of a chain business and/or has multiple locations, which
employees count toward the number of employees?
If a business has multiple locations and the owner or principal of the multiple locations owns at
least 30% of each location and each location is either engaged in the same business or
operates under a franchise agreement as defined under New York State law, then the total
number of employees should include employees at all locations in New York City as long as the
multiple locations collectively employ at least five employees.
4
Scenarios:
Kenny, an employer, owns 50% of each of three pizzerias in New York City.
Each location employs four employees. Would Kenny have to provide paid
or unpaid safe and sick leave?
Kenny must provide paid safe and sick leave to his employees. Kenny should
count all 12 employees toward the number of employees.
Silvia owns 25% of one fast food restaurant, which is operated under a
franchise agreement with a franchisor. There are 50 other locations of this
franchise in New York City. Silvia employs four workers at her restaurant.
Would Silvia have to provide paid or unpaid safe and sick leave?
Silvia must provide unpaid safe and sick leave to her employees. Silvia owns
less than 30% of one franchise, the restaurant is not part of a group of locations
that share a common owner or principal who owns at least 30% of each
establishment, and Silvia employs fewer than five employees.
Possible exception as of January 1, 2021:
If Silvia’s net income is $1 million or more in the previous tax year, then, starting
January 1, 2021, Silvia must provide paid safe and sick leave to her employees.
10. Do employees who do not live in New York City count toward the number of
employees?
Yes. The Law applies to employees employed in New York City. For counting purposes, it does
not matter where the employees live.
11. Does an employer based outside of New York City have to provide safe and sick leave
to employees who work in New York City?
Yes. Employers located outside New York City must provide safe and sick leave to employees
who work in New York City.
4
Go to ag.ny.gov and search “Franchisors and Franchisees” or consult Section 681 of the New York State General
Business Law for more information.
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Scenarios:
Sara owns a trucking company based in Buffalo. Her drivers make regular
deliveries and pickups in New York City. Are Sara’s drivers working in New
York City for purposes of the Law?
Yes. Making deliveries or pickups in New York City is performing work in New
York City.
Boss Trucking Company is based in Cleveland. Its drivers drive through
New York City without stopping to make deliveries or pickups. Are Boss’s
drivers working in New York City for purposes of the Law?
No. Drivers who pass through New York City without stopping to make pickups,
deliveries, or otherwise work in New York City are not considered to be working
in New York City for purposes of the Law, which does not apply to employees
who do not work in New York City.
12. Can an employee have more than one employer?
Yes. Two or more employers may be a “joint employer” of an employee, with each having some
control over the employee’s work or working conditions. Joint employers may be separate and
distinct individuals or entities with separate owners, managers, and facilities.
Example: A general contractor and its subcontractor may be joint employers of employees on
the same construction project.
13. If employers are joint employers, which employer is responsible for compliance with
the Law?
Generally, each joint employer is responsible, jointly and severally, for compliance with all
applicable provisions of the Law and payment of any relief and penalties for violations of
the Law.
Example: If a franchisor employer exercises some control over the work or working conditions
of a franchisee’s employees, both the franchisee and franchisor may be considered joint
employers of the employees under the Law and have an obligation to ensure that its
requirements are met.
14. What factors are considered in determining whether an employer is a joint employer?
Whether an employer is a joint employer of the employee is based on an assessment of the
employer’s exercise of control over the work or working conditions of an employee. Factors that
are considered include but are not limited to whether:
i. The employer established policies or practices related to the employment, supervision,
and/or working conditions of the employee.
ii. The employer has the power to hire and fire the employee.
iii. The employer supervises and controls the employee’s work schedule or conditions
of employment.
iv. The employer determines the rate and method of payment.
v. The employer maintains the employee’s employment records.
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vi. The employee uses the employer’s premises and equipment.
vii. The employee performs discrete work that is integral to the employer’s production
or work.
viii. The employee works exclusively or predominantly for the employer.
ix. The employer provides training to the employee.
15. How should joint employers count the employees they jointly employ?
Every employer that is a joint employer must count each employee jointly employed in
determining the number of employees who work for pay.
Example: An employer who jointly employs three workers and also has three employees under
its sole control has six employees for the purposes of the Law and must provide paid safe and
sick leave to each employee.
Example: An employer employs four workers through a temporary help firm as well as three
permanent workers who are employed directly and under the employer’s sole control. That
employer has seven employees for purposes of the Law and must provide paid safe and
sick leave.
16. If an employee has two or more joint employers, does the employee accrue separate
leave balances with each employer for the same work?
No. If an employee is employed by two or more joint employers, all of the employee’s work for
each of the joint employers will be considered as a single employment for purposes of accrual
and use of safe and sick leave under the Law.
Scenario:
Maria is a garment worker employed by a contractor (ABC Corp.) that
contracts with a manufacturer (XYZ Corp.) to assemble garments. ABC
Corp. and XYZ Corp. are joint employers of Maria. How is Maria covered by
the Law?
All of the hours Maria works assembling garments for both ABC Corp. and XYZ
Corp. are counted as a single employment and, together, her joint employers
must provide safe and sick leave, which she accrues at a rate of 1 hour for every
30 hours she works.
Maria does not maintain two different balances of accrued safe and sick leave,
one each with ABC Corp. and XYZ Corp.
17. What is a temporary help firm?
A temporary help firm is an organization that recruits and hires its own employees and assigns
those employees to perform work or services for another organization to:
i. support or supplement the other organization’s workforce;
ii. provide assistance in special work situations, such as employee absences,
skill shortages, or seasonal workloads; or
iii. perform special assignments or projects.
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A placement firm that does not hire employees on its own behalf would not meet the definition of
temporary help firm.
II. EMPLOYEES COVERED BY THE LAW
1. Which employees are covered by the Law?
Most employees who work in New York City are covered by the Law, including:
• Full-time employees
• Part-time employees
• Domestic workers
• Temporary and seasonal employees
• Per diem and on-call employees
• Transitional jobs program employees
• Undocumented employees
• Employees who are family members but not owners
• Employees who live outside of New York City but work in New York City
• Owners who are considered employees under New York State Labor Law
2. Which employees are not covered by the Law?
The Law does not apply to:
• Government employees (federal, State of New York, City of New York)
• Participants in federal work-study programs
5
• Employees whose work is compensated by qualified scholarship programs as defined in
26 U.S.C. § 117
6
• Hourly professional employees who:
i. are licensed by the New York State Education Department under Sections 6732,
7902, or 8202 of the New York State Education Law;
ii. call in for work assignments, at will, to determine their work schedule with the ability
to reject or accept any assignment referred to them; and
iii. are paid an average hourly wage which is at least four times the federal minimum
wage for hours worked during the Calendar Year.
• Independent contractors who do not meet the definition of an employee under New York
State Labor Law
7
• Certain employees subject to a collective bargaining agreement
• Participants in Work Experience Programs (WEP) under Section 336-c of the New York
State Social Services Law
• Owners who do not meet the definition of an employee under New York State Labor Law
3. Does the Law cover domestic workers?
Yes, the Law has always covered domestic workers. However, under new amendments that
took effect on September 30, 2020, domestic workers are now covered the same as private or
nonprofit employees working for employers with 5 or more employees.
5
Information about federal work-study programs is available on the U.S. Department of Education website ed.gov
6
For more information, see the Internal Revenue Code.
7
Go to labor.ny.gov and search for “Independent Contractors.”
Updated November 2, 2020 Page 8 of 41
Specifically:
• Domestic workers accrue safe and sick leave at the rate of 1 hour for every 30 hours
worked, up to a maximum of 40 hours per year (or, effective January 1, 2021, up to a
maximum of 56 hours per year if their employer employs 100 or more employees).
• Domestic workers may use safe and sick leave as it is accrued.
Domestic workers are workers who provide care, companionship, housekeeping, or any other
domestic service in a home, whether employed by an agency or a household.
Examples: Domestic workers include nannies, housekeepers and house cleaners, and home
health aides. They may be solely employed or jointly employed, e.g., by a household employer
and an agency employer.
Domestic workers who are also entitled to days of rest under New York State Labor Law have
these days of rest count toward fulfillment of the City Law requirements only if the days of rest
are made available on the same terms and conditions as required by City Law. If they are not,
then the days of rest are additional days for worker use apart from what City Law provides.
4. Does the Law apply to undocumented workers?
Yes. All covered workers have the same rights and protections under the Law, regardless of
immigration status.
In addition, DCWP will answer questions and process safe and sick leave complaints without
regard to immigration status. DCWP will not ask about workers’ immigration status during the
course of any DCWP investigation.
5. Does the Law apply to employees who are based outside New York City but who work
in New York City on an occasional basis?
Yes. For employees who work in New York City on an occasional basis, the employer must
calculate safe and sick leave accruals based on the hours that the employee spends working in
New York City.
6. Does the Law apply to supervisors, managers, and salaried employees?
Yes.
7. Does the Law apply to independent contractors?
No. The Law applies to employees only.
Whether a worker is an employee or independent contractor depends on several factors.
These include how much supervision, direction, and control the employer has over the
services being provided.
Workers may meet the legal standard for classification as employees even if they are
considered independent contractors by their employers.
Example: Just because an employer issues a 1099 tax form to a worker, has a worker sign a
contract stating that the worker is an independent contractor, or rents a workspace to a worker
Updated November 2, 2020 Page 9 of 41
(such as a chair in a salon), that does not necessarily mean the worker is actually an
independent contractor.
8. If a worker believes that an employer misclassified the worker as an independent
contractor instead of as an employee and, therefore, did not provide safe and sick
leave as required by the Law, can the worker file a complaint with DCWP?
Yes. Workers who believe they have been misclassified as independent contractors may file a
complaint with DCWP. As part of its investigation, DCWP will make a determination as to
whether a worker is covered by the Law.
9. Does the Law apply to employees who telecommute?
Yes. Employees who telecommute are covered by the Law for the hours when they are
physically working in New York City (on-site or by telecommuting), even if the employer is
physically located outside New York City.
Employees are not covered for the hours when they are not physically working in New York City,
even if the employer is physically located in New York City.
10. Does an employer have to provide safe and sick leave to employees who also work for
other unrelated employers?
Yes. Assuming that the employee is eligible to accrue safe and sick leave from both employers,
both employers must provide the employee with safe and sick leave. This is true even if the
employee works for employers that are not joint employers.
11. Does the Law apply to industrial homeworkers?
Employees who manufacture industrial goods in their home for an employer are covered by the
Law if they perform their work from a New York City residence, even if the employer is
physically located outside New York City.
Employees are not covered by the Law if they perform their work from a residence outside New
York City, even if the employer is physically located in New York City.
12. Does the Law apply to employees covered by collective bargaining agreements?
It depends.
The Law does not apply to employees covered by a valid collective bargaining agreement that
was in effect on April 1, 2014 (or in effect before the effective date of subsequent amendments
to the Law) until that collective bargaining agreement expires. For employees covered by a
collective bargaining agreement, the Law does not apply if:
i. the collective bargaining agreement expressly waives the Law's provisions; and
ii. the agreement provides a comparable benefit to employees, such as paid time off.
If both of these conditions are not in place, the Law does apply to these employees.
Exception: For employees in the construction or grocery industries covered by a collective
bargaining agreement that came into effect after April 1, 2014 (or after the effective date of
subsequent amendments to the Law), the Law does not apply if the collective bargaining
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agreement expressly waives the Law's provisions. The agreement does not have to provide a
comparable benefit to these employees.
III. RIGHT TO AND NOTICE OF SAFE AND SICK LEAVE
1. For what purposes can a covered employee use sick leave?
Employees can use sick leave to take time off from work when:
• They have a mental or physical illness, injury, or health condition; need to get a medical
diagnosis, care, or treatment of a mental or physical illness, injury, or health condition;
or need to get preventive medical care.
• They must care for a family member who needs medical diagnosis, care, or treatment
of a mental or physical illness, injury, or health condition, or who needs preventive
medical care.
• Their employer’s business closes due to a public health emergency or they need to care
for a child whose school or child care provider closed due to a public health emergency.
2. Can an employee use sick leave for doctor, dentist, or eye doctor appointments?
Yes. Employees may use sick leave for appointments when they require treatment for a
condition or for preventive medical care.
3. What is preventive medical care?
Preventive medical care is routine health care that includes screenings, checkups, and patient
counseling to prevent illnesses, disease, or other health problems.
8
4. For what purposes can a covered employee use safe leave?
Covered employees can use safe leave if they or a family member may be the victim of any act
or threat of domestic violence, unwanted sexual contact, stalking, or human trafficking, and they
need to take actions necessary to restore the physical, psychological, or economic health or
safety of themselves or family members, or to protect those who associate or work with the
employee, including to:
• Obtain services from a domestic violence shelter, rape crisis center, or other
services program.
• Participate in safety planning, relocate, or take other actions to protect the
employee’s safety or that of the employee’s family members, including enrolling
children in a new school.
• Meet with an attorney or social service provider to obtain information and advice
related to custody; visitation; matrimonial issues; orders of protection; immigration;
housing; discrimination in employment, housing, or consumer credit.
• File a domestic incident report with law enforcement or meet with a district
attorney’s office.
• Attend civil or criminal court dates related to any act or threat of domestic violence,
unwanted sexual contact, stalking, or human trafficking.
8
For examples of preventive care for adults, women, and children, visit the federal website HealthCare.gov
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5. Can an employee use safe leave even if the employee has not reported a crime to the
police and/or if the crime has not been proven?
Yes. The Law does not require an employee to prove that a crime has occurred or been
reported in order to use safe leave. Employees may use safe leave if they or a family member
may be the victim of acts or threats of acts that may constitute the specified crimes under New
York State Penal Law.
6. What is a family offense matter?
Family offense matters include:
• any threat or act of physical violence between family members;
• any threat or act of sexual assault or abuse by a family member;
• any threat or act of theft of money, property, or items of value among members of the
same household.
7. What is human trafficking?
Human trafficking includes threats or acts that may constitute sex trafficking and labor
trafficking.
A victim of sex trafficking has been coerced into prostitution involuntarily due to narcotic
substances or other drugs; to pay a real or perceived debt; because someone withheld or
destroyed government or immigration identification like visas or passports; through violence,
threats, or lies; or any other coercive means defined in the New York State Penal Law.
A victim of labor trafficking has been coerced into labor to pay a real or perceived debt; because
someone withheld or destroyed government or immigration identification like visas or passports;
through violence, threats, or lies; or any other coercive means defined in the New York State
Penal Law.
8. What is a sexual offense?
A sexual offense is any act, or threat of an act, that may constitute rape, sexual abuse, sexual
assault, or other sex offense under the New York State Penal Law.
9. What is stalking?
Victims of stalking have experienced any act, or threat of an act, that may constitute the crime of
stalking as defined by the New York State Penal Law. The crime of stalking may include:
• two or more acts with no legitimate purpose which cause victims to fear for the safety of
themselves or loved ones;
• verbal, nonverbal, written, direct, or indirect threats which cause victims to fear for their
safety or the safety of loved ones;
• a course of conduct, including following, telephoning, or contacting the victim or victim’s
family member, meant to cause reasonable fear of harm to the victim or victim’s family’s
property, employment, or person.
The perpetrator of the crime of stalking may be known to the victim or may be a stranger.
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Actions that have a legitimate purpose—for example, letters from a debt collector seeking
payment on a valid debt—do not constitute stalking without other facts suggesting the sender’s
intent to cause harm.
10. What are some examples of safe leave?
Someone from Ruby’s neighborhood has been following her. Recently, someone
broke into her apartment while she and her 10-year-old son were out. No one was
physically harmed, but Ruby suspects that it was the person who has been
following her and she doesn’t feel safe staying in her neighborhood anymore.
She has decided to move in with her mom in another school district. Ruby needs
to take a day off from work to enroll her son in his new school and to move their
belongings to storage and her mom’s apartment. May Ruby use safe leave?
Yes. Ruby is taking time off from work to move and to enroll her son in a new school
because the acts against her are some of the acts that can constitute the crime of
stalking. Stalking and threats or acts that may constitute stalking are covered by the
Law; covered employees may use safe leave to relocate and to enroll children in a new
school. Ruby’s employer must provide safe leave.
Warren was mugged one early Sunday morning, a workday, after dropping off his
partner at the airport. He needs to take a couple of hours off to go to the police
station to identify suspects. Is the time Warren needs to take off safe leave?
No. Although Warren was the victim of a violent crime, it was not an act or threat of
domestic violence, unwanted sexual contact, stalking, or human trafficking. His
employer is not required to provide him with leave under the Law. The Law, however,
does not prohibit his employer from giving him time off to handle the police matter.
Francisco needs to take a half-day to go to court to obtain a restraining order
against his son-in-law who used to live with him and assaulted Francisco. Is the
time Francisco needs to take off from work safe leave?
Yes. Francisco is attending a court proceeding to protect himself and his family after a
family offense matter. His employer must provide safe leave.
Jennifer, a salesclerk, is pickpocketed on the subway on her way to work and her
wallet is stolen. She believes the perpetrator may have watched her withdrawing
money from the ATM and followed her into the subway station. She immediately
files a report with a law enforcement officer, causing her to be an hour late to
work. Can Jennifer use safe leave for this time?
No. Pickpocketing is not an act or threat of domestic violence, unwanted sexual
contact, stalking, or human trafficking. Although in this case Jennifer may have been
followed into the subway station, it’s unlikely that the one-time incident, without
evidence of a pattern or practice, constituted “stalking.”
Donna, a paralegal, has been receiving counseling from her pastor after a
domestic violence incident involving her ex-boyfriend. She needs to take the
afternoon off work to attend a counseling session. May Donna use safe leave for
this time?
Yes. Donna was the victim of a family offense matter and is meeting with her pastor in
order to improve her psychological health. This would be considered a permissible use
of safe leave.
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11. Does safe leave provide more time off for employees, over and above sick leave?
No. The Law does not require employers to provide separate safe and sick leave to employees.
Instead, employers must provide at least one form of leave that employees can use for either
safe or sick leave purposes.
12. Are employers required to give employees notice of their right to safe and sick leave?
Yes. Employers must give covered employees a written Notice of Employee Rights. Employers
must also post the Notice in the workplace in an area that is visible and accessible to
employees. The Notice must be posted by January 1, 2021.
Employers must give a written Notice of Employee Rights to employees when they begin
employment or when their rights change. Employees have a right to be given a Notice in English
and, if available on the DCWP website, their primary language.
Note: Under the new amendments that took effect September 30, 2020, the following employers
must provide an updated Notice of Employee Rights to employees by January 1, 2021:
• Employers with 100 or more employees
• Employers of domestic workers
The Notice of Employee Rights must include information about:
• Accrual and use of safe and sick leave
• Employer’s Calendar Year
• Right to be free from retaliation
• Right to file a complaint
The Notice of Employee Rights is available at nyc.gov/workers.
DCWP encourages employees to keep copies of all Notices provided to employees.
13. Can employees file a complaint with DCWP if their employer does not provide a Notice
of Employee Rights or other information about safe and sick leave?
Yes. Covered employees who have not received a Notice of Employee Rights or other
information about safe and sick leave and who are not being provided with safe and sick leave
as required by Law may file a complaint with DCWP.
14. For an employer based outside New York City whose employees work in New York
City, when must the employer provide employees with the Notice of Employee
Rights?
Employers must give Notice of the right to safe and sick leave to an employee once that
employee begins to perform work for that employer while physically located in New York City.
15. In what language must an employer provide the Notice of Employee Rights?
An employer must provide the employee with the Notice of Employee Rights in English and in
the language that the employer customarily uses to communicate with that employee. If
available on the DCWP website, the employer must also provide the Notice in the employee’s
primary language and the language spoken by at least 5% of employees.
Updated November 2, 2020 Page 14 of 41
16. How should employers provide the Notice of Employee Rights to employees?
Employers must use a delivery method that reasonably ensures that employees receive
the Notice.
Example: An employer may provide the Notice to each employee personally, or by regular mail
or by email, or may provide the Notice to the employee by including it in new hire materials
given directly to the employee. An employer cannot post the Notice at the workplace in lieu of
individually providing the Notice to all covered employees.
17. Should an employer save a signed copy of the Notice of Employee Rights or an email
receipt for the Notice?
Yes. 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. Saving
signed copies of the Notice or email receipts is a good way to document that employers gave
employees the required Notice.
18. Does the Notice of Employee Rights have to be posted in the workplace?
Yes. Under the new amendments that took effect September 30, 2020, employers must post the
Notice in the workplace in an area accessible to employees. The Notice must be posted by
January 1, 2021. However, an employer cannot post the Notice at the workplace in lieu of
individually providing the Notice to all covered employees.
19. Must an employer with safe and sick leave policies that meet or exceed the
requirements of the Law give the required Notice of Employee Rights to employees?
Yes. An employer must give employees the Notice of Employee Rights so that employees are
aware of their rights under the Law.
20. Do employers have to give employees regular information about how much safe and
sick leave they have?
Yes. Employers must tell employees how much safe and sick leave they have accrued, used,
and have available for use regularly. As of September 30, 2020, this information must appear on
pay stubs or other documentation provided to employees each pay period.
IV. USE OF SAFE AND SICK LEAVE
1. Can employees use safe and sick leave for the care of adult children?
Yes. The Law allows covered employees to use sick leave to care for a child, regardless of age.
2. Can parents use safe and sick leave following the birth of their child?
A mother can use accrued sick leave during any period of sickness or disability following the
birth of her child. The other parent can use accrued leave to care for the mother during this
period. Parents also can use leave to care for a child’s need for medical diagnosis, care, or
treatment of an illness, injury, or health condition, or preventive medical care.
However, under City Law, parents cannot use sick leave to “bond” with a newborn or newly
adopted child. The federal Family and Medical Leave Act (FMLA) allows leave for bonding
purposes as does New York State’s Paid Family Leave Law.
Updated November 2, 2020 Page 15 of 41
Under New York State’s Paid Family Leave Law, employees in New York State have access to
paid leave to:
• bond with a newborn, adopted, or foster child;
• care for a close relative with a serious health condition; or
• assist loved ones when a family member is deployed abroad in active military service.
3. How much safe and sick leave do employers have to give employees?
Depending on their size and/or net income, employers must give covered employees up to
40 hours (or 56 hours as of January 1, 2021) of safe and sick leave every Calendar Year.
Employees may use accrued leave for safe or sick leave purposes.
Employers with 4 or fewer employees:
• must provide up to 40 hours of unpaid safe and sick leave if the employer’s net income is
less than $1 million in the previous tax year.
• (as of January 1, 2021) must provide up to 40 hours of paid safe and sick leave if the
employer’s net income is $1 million or more in the previous tax year.
Employers with 5 or more employees regardless of income:
• must provide up to 40 hours of paid safe and sick leave if the employer employs up to
100 employees.
• (as of January 1, 2021) must provide up to 56 hours of paid safe and sick leave if the
employer employs 100 or more employees.
Employers of domestic workers:
• must provide up to 40 hours of paid safe and sick leave if the employer employs up to
100 employees.
• (as of January 1, 2021) must provide up to 56 hours of paid safe and sick leave if the
employer employs 100 or more employees.
4. When do employees begin to accrue safe and sick leave?
Employees began to accrue leave on April 1, 2014 or on their first day of employment,
whichever is later.
5. How does safe and sick leave accrual work?
Employees accrue safe and sick leave at the rate of 1 hour for every 30 hours worked, up to
a maximum of 40 hours (or 56 hours as of January 1, 2021) of safe and sick leave each
Calendar Year.
6. When can per diem or on-call employees use safe and sick leave?
Per diem or on-call employees who are covered by the Law can use safe and sick leave
for:
i. hours they were scheduled to work; or
ii. hours they would have worked if they hadn’t used leave.
Updated November 2, 2020 Page 16 of 41
For an absence from scheduled work, an employer should pay the employee what the employee
would have earned if the employee had worked the scheduled shift.
Otherwise, the employer should base the amount of paid sick leave on the per diem hours the
employee would have worked. This may be determined by:
• the hours the employee most recently worked for the employer in the past;
• the amount of work offered that the employee was unable to accept for a covered reason;
or
• the number of hours worked by the person who filled the shift that day.
See the Rules for Safe and Sick Leave, Section 7-214(d).
Scenarios:
Laura’s employer calls to offer her a four-hour per diem shift that same day to
cover for a regular employee who is out sick. Laura responds that she feels sick
and cannot work. Is her employer required to allow her to use accrued safe and
sick leave?
Yes. Laura may use four hours of her accrued sick leave.
Maisie works for Paulie’s Pub. Maisie is no longer available to work a regular
schedule but is a dependable last-minute substitute worker for evening shifts,
which run from 5 p.m. to 8 p.m. on weekdays and 7 p.m. to 9 p.m. on weekends.
Recently, Maisie has been called in to work between three to five days per week,
on weekdays and weekends. If Maisie is needed to cover an evening shift, Paulie,
her employer, will usually call her about 2 p.m. in advance of the shift. On
Tuesday at 12 p.m., Maisie called Paulie to let him know he shouldn’t call her to
work because she has to accompany her son to the emergency room. Is Paulie’s
Pub required to allow Maisie to use safe and sick leave? How much?
Yes. Maisie’s employer must allow her to use at least three hours of sick leave.
Viktor works for Clay Creations. He has accrued 20 hours of safe and sick leave
over the course of his employment. In the past few weeks, Viktor has been called
in to teach pottery classes one or two times per week, for two hours each class.
In the most recent workweek he was called in for one two-hour class. Today,
Viktor called his boss to say he will be unable to work for the next two weeks and
needs to use his accrued leave because he needs to care for his partner who is
recovering from emergency surgery. Is Clay Creations required to allow Viktor to
use safe and sick leave? How much?
Yes. Viktor’s employer must allow him to use at least two hours of sick leave each
week he is unable to work while caring for his partner for a total of at least four hours
since Viktor most recently worked two hours in a week.
Updated November 2, 2020 Page 17 of 41
Scenarios (continued):
Felice’s employer offers her a per diem shift five days before the day of that
shift. Felice accepts the offer. The day after Felice accepts the offer, she
schedules her annual physical for the same day and time as the work shift. Her
employer has a policy requiring that employees provide seven days advance
notice of a foreseeable need to use safe and sick leave. Is her employer required
to allow her to use leave for sick leave purposes?
No. Felice was scheduled to work and did not comply with her employer’s advance
notice policy, so her employer is not required to grant her request for sick leave.
7. How do employees who are paid on a flat-rate basis (for example, paid by the piece)
accrue safe and sick leave?
When employees are paid on a flat-rate basis, accrual of safe and sick leave is measured by the
actual length of time spent performing work.
8. How do employees who are paid on a commission basis accrue safe and sick leave?
When employees are paid on a commission basis, accrual of safe and sick leave is measured
by the actual length of time spent performing work.
9. How must an employer measure the use of safe and sick leave for employees with
indeterminate shift lengths?
When employees have shifts of indeterminate length, the employer calculates safe and sick
leave used based on the number of hours worked by the replacement employee for the same
shift. If this method is not possible, the employer must base the number of hours of safe and
sick leave on the hours worked by the employee when the employee most recently worked the
same shift in the past.
10. Does an employee accrue safe and sick leave during a probationary period?
Yes. Covered employees begin to accrue safe and sick leave when they begin employment.
11. When can an employee start to use safe and sick leave?
Before September 30, 2020:
• Employees could start to use accrued sick leave on July 30, 2014 or 120 days after the
start of their employment, whichever was later. They could start to use accrued safe
leave on May 5, 2018 (when safe leave provisions took effect) or 120 days after the start
of their employment, whichever was later.
As of September 30, 2020:
• Employees may use safe and sick leave as they accrue it. There is no longer a
waiting period.
Updated November 2, 2020 Page 18 of 41
Exception: For employees who are able to accrue a maximum of 56 hours instead of 40 hours in
a Calendar Year, employers do not have to allow them to use any accrued safe and sick leave
over 40 hours until January 1, 2021.
Example: If an employee has accrued 40 hours of safe and sick leave by September 30, 2020
and continues to accrue leave, the employee can use up to 40 hours until December 31, 2020
but can only begin to use the additional accrued hours after January 1, 2021.
12. What happens to safe and sick leave that an employee has accrued but hasn’t used at
the end of the Calendar Year?
Employees can carry over to the next Calendar Year up to 40 or 56 hours of unused safe and
sick leave. However, employers are only required to allow employees to use up to 40 or 56
hours of safe and sick leave per Calendar Year.
13. If an employee carries over 40 hours of unused safe and sick leave to a new Calendar
Year, is an employer required to allow the employee to use 80 hours of safe and sick
leave in the next Calendar Year?
No. Employers are only required to allow employees to use up to 40 or 56 hours of safe and sick
leave per Calendar Year. If an employee accrues the maximum amount of 40 or 56 hours and
uses fewer hours than the amount accrued during the course of a Calendar Year, then the
employee can carry over to the next Calendar Year the remaining hours, up to a maximum of
40 or 56 hours, which will be available for immediate use.
Example: An employee accrues 40 hours of safe and sick leave in Calendar Year 1 and uses
20 hours of safe and sick leave in Calendar Year 1. She carries over to the next Calendar Year
20 hours, accrues 40 hours, and does not use any hours in Calendar Year 2. Her safe and sick
leave balance at the end of Calendar Year 2 is 60 hours (20 hours from Calendar Year 1 plus
40 hours from Calendar Year 2). She may carry over to Calendar Year 3 only 40 of her
60 hours, and she accrues another 40 hours in Calendar Year 3. Her employer is only required
to allow her to use 40 hours of her available 80 hours in Calendar Year 3.
14. Can an employer pay the employee for unused safe and sick leave instead of allowing
the employee to carry it over?
Yes. An employer can choose—but is not required—to pay an employee for unused safe and
sick leave at the end of the Calendar Year. An employer is not required to allow employees to
carry over safe and sick leave if:
• The employer pays employees for the unused accrued safe and sick leave AND the
employer frontloads the maximum of 40 or 56 hours, i.e., provides the employee with the
maximum number of hours on the first day of the new Calendar Year. OR
• The employer frontloaded 40 or 56 hours of safe and sick leave at the beginning of the
Calendar Year and will frontload 40 or 56 hours of safe and sick leave on the first day of
the new Calendar Year.
An employer that switches from an accrual system to a frontloading system must pay out any
unused accrued leave at the end of the year in which the safe and sick leave was accrued.
Updated November 2, 2020 Page 19 of 41
Scenario:
Paulina has accrued 40 hours of safe and sick leave but hasn’t used any
of it. On the first day of the next Calendar Year, Paulina gets the flu. Can
she use sick leave?
Yes. Paulina can use 40 hours of safe and sick leave right away—she carries
over to the new Calendar Year the 40 hours of earned leave. However,
Paulina’s employer does not have to let her use more than 40 hours of safe
and sick leave in the new Calendar Year even though Paulina may accrue up
to 40 additional hours of safe and sick leave in the new Calendar Year.
15. Can an employee agree with an employer to be paid for safe and sick leave as it is
accrued instead of only at the end of the Calendar Year?
No. The purpose of the Law is to ensure that employees can use safe and sick leave for
permissible purposes. Paying employees for unused safe and sick leave before the end of the
Calendar Year could leave employees with no safe and sick leave on days when employees
need to use safe and sick leave and would undercut the purpose of the Law.
16. What is the advantage of carrying over safe and sick leave?
When an employee carries over to a new Calendar Year unused safe and sick leave, the
employee can use it right away instead of waiting to accrue safe and sick leave in the new
Calendar Year.
17. Can an employer have a policy that frontloads 40 or 56 hours of safe and sick leave to
the beginning of each Calendar Year to avoid calculating accruals?
Yes. An employer can have a policy that provides all employees with 40 or 56 hours of safe and
sick leave at the beginning of each Calendar Year. This option may be attractive to employers
who prefer not to track the accrual of safe and sick leave for each covered employee. However,
if the employer has not calculated employees’ use and accruals, the employer cannot change
the policy in the new Calendar Year since employees are entitled to carry over unused safe and
sick leave and use those hours at the beginning of the new Calendar Year.
18. Can an employer frontload accrual for part-time employees?
Yes. At the beginning of each Calendar Year, an employer can provide part-time employees
with the hours of safe and sick leave they would accrue based on the hours they are anticipated
to work at the accrual rate of 1 hour of safe and sick leave for every 30 hours the employee is
anticipated to work. However, if the employer frontloads fewer than 40 or 56 hours, the
employer must still track the employee’s hours worked and accrual of safe and sick leave
because a part-time worker may work more hours than anticipated.
Updated November 2, 2020 Page 20 of 41
If the employee works more hours than anticipated:
• The employer must allow the employee to accrue leave at the rate of 1 hour for every
30 hours worked until the total amount of frontloaded plus accrued safe and sick leave in
a Calendar Year equals 40 or 56 hours. Employers who frontloaded fewer than 40 or
56 hours in a Calendar Year must allow a part-time employee to:
o Use up to 40 or 56 hours of safe and sick leave in a Calendar Year if the employee
accrued it. OR
o Carry over to the new Calendar Year up to 40 or 56 hours of unused safe and sick
leave. This carried over leave is in addition to the amount of frontloaded leave the
employer expects the employee to earn in the new Calendar Year.
Reminder: If the employer has not calculated employees’ use and accruals, the employer
cannot change the policy in the new Calendar Year since employees are entitled to carry over
unused safe and sick leave and use those hours at the beginning of the new Calendar Year.
19. If an employer wants to frontload safe and sick leave for a full-time employee at the
time of hire, must the employer frontload 40 or 56 hours of safe and sick leave if the
employee is not projected to accrue 40 or 56 hours of safe and sick leave in the
remainder of the employer’s Calendar Year?
No. As long as the employer tracks accruals of safe and sick leave for the newly hired employee
for the remainder of the Calendar Year, the employer would not need to frontload 40 or 56
hours. To avoid tracking accruals, however, the employer would need to frontload the full 40 or
56 hours.
20. Can an employer have a policy that permits employees to donate unused safe and
sick leave to other employees?
Yes. An employer can have a policy that allows employees to donate unused safe and sick
leave to other employees, as long as the policy is voluntary.
21. How is safe and sick leave accrued for employees who are exempt from overtime
requirements under New York State’s Minimum Wage Law or other New York State
law?
If an exempt employee works 40 hours or more in a week, safe and sick leave still accrues
based on a 40-hour workweek but not beyond the 40 hours. If an exempt employee works less
than 40 hours in a week, safe and sick leave accrues based on the employee’s normal
workweek.
22. How does safe and sick leave accrue for employees who are not exempt from
overtime requirements under New York State’s Minimum Wage Law or other New York
State law?
For employees who are not exempt from the overtime provisions of New York State’s Minimum
Wage Law or other New York State law, safe and sick leave accrues during all hours worked,
including overtime hours worked.
Updated November 2, 2020 Page 21 of 41
23. Does safe and sick leave accrual and carryover need to be based on the Calendar
Year, or can employers use other dates, such as the date of hire?
Employers must base accrual and carryover for all employees on the Calendar Year unless the
employer has a more generous policy that allows employees to accrue leave at a faster rate
than the Law requires.
24. Do employees who leave and return (seasonal, rehires, etc.) get to keep their accrued
safe and sick leave?
If the employee is rehired within six months, the employer must reinstate previously accrued
safe and sick leave, unless the employer paid the employee for unused safe and sick leave
when the employee left and the employee agreed to be paid out.
25. Can an employee who returns to the same employer within six months of separating
access previously accrued safe and sick leave?
Yes. Unless the employer paid the employee for unused safe and sick leave when the employee
left and the employee agreed to be paid out, the employee may access previously accrued safe
and sick leave.
26. What is required of an employer who rehires an employee after a break in employment
of more than six months?
If the employee’s break in employment is more than six months, the Law does not require the
employer to reinstate unused safe and sick leave. The employee would have a zero balance of
accrued safe and sick leave on the first day of employment but would begin to accrue leave
immediately.
27. If an employee is transferred to another division or location of the same employer in
New York City, is the employee entitled to keep the safe and sick leave the employee
accrued at the previous location?
Yes. The employee gets to keep and can use all previously accrued safe and sick leave.
28. If a covered business is sold to another employer, what happens to an employee’s
safe and sick leave?
The employee will retain unused safe and sick leave if the employer sells, transfers, or
otherwise assigns the business to another employer and the employee continues to work in
New York City.
29. When must a successor employer provide employees with its safe and sick leave
policies?
A successor employer must provide employees with its written safe and sick leave policies at
the time of sale or acquisition or as soon as practicable thereafter. The policy must comply with
the other notice requirements in the Law.
30. Do employers have to pay unused safe and sick leave to employees who leave
employment?
No. If an employee resigns, retires, is terminated, or is otherwise separated from employment,
an employer is not required to pay the employee for unused safe and sick leave.
Updated November 2, 2020 Page 22 of 41
31. Can employers give employees more safe and sick leave than the amount required by
the Law?
Yes. Employers may provide more generous leave than what is required by the Law.
32. Who decides how much safe and sick leave an employee can use?
As a general matter, it should be the employee who decides how much accrued safe and sick
leave to use. However, employers can set a minimum daily increment of up to four hours.
33. Can an employer require an employee to use a minimum daily increment of safe and
sick leave?
Yes. The Law allows employers to set a reasonable minimum increment for the use of safe and
sick leave, but this minimum cannot be more than four hours per day unless otherwise permitted
by state or federal law.
Scenarios:
Papa’s Pizzeria requires employees to use a minimum of four hours of
safe and sick leave each day that an employee uses safe and sick leave.
Petra has accrued more than four hours of safe and sick leave. She calls a
half hour before she is scheduled to work to say she feels sick and will be
one hour late. Petra wants to use one hour of leave for sick leave
purposes. Can she?
No. Papa’s Pizzeria can require Petra to use four hours of safe and sick leave
as the minimum increment.
Juan Carlos has accrued only three hours of safe and sick leave while
working for Papa’s Pizzeria. Can Papa’s Pizzeria require Juan Carlos to
use a minimum of four hours of safe and sick leave?
No. It would not be reasonable under these circumstances for Papa’s Pizzeria to
require Juan Carlos to use four hours of safe and sick leave as the minimum
increment.
Anya works at Bank XYZ from 8:00 a.m. to 4:00 p.m. on Mondays. She
schedules a doctor’s appointment for 9:00 a.m. on a Monday and notifies
her employer of her intent to use leave for sick leave purposes and report
to work after the appointment. Bank XYZ’s written safe and sick leave
policies require employees to use a four-hour minimum increment of safe
and sick leave per day. If Anya reports to work at 11:30 a.m., how many
hours of safe and sick leave may Bank XYZ require her to use?
Even though Anya reported to work before 12:00 p.m., her employer can require
her to use four hours of safe and sick leave.
Updated November 2, 2020 Page 23 of 41
34. If an employee uses more than four hours of safe and sick leave in a day, may the
employer set fixed periods for further use of safe and sick leave after that increment?
Yes. The four-hour minimum daily increment only applies to the first four hours of safe and
sick leave in a day. An employer may not require that an employee take subsequent time in
four-hour increments. An employer may set fixed periods of 30 minutes or any smaller amount
of time for the use of accrued safe and sick leave beyond the minimum increment and may
require fixed start times for such intervals.
Scenarios:
Anya is scheduled to work at Bank XYZ from 8:00 a.m. to 4:00 p.m. on
Mondays. She schedules a doctor’s appointment for 9:00 a.m. on a
Monday and notifies her employer of her intent to use leave for sick leave
purposes and report to work after the appointment. Bank XYZ’s written
safe and sick leave policies require employees to use a four-hour
minimum increment of safe and sick leave per day and to use leave in
half-hour intervals that start on the hour or half-hour. After her doctor’s
appointment, Anya arrives to work at 12:17 p.m. How much safe and sick
leave may Bank XYZ require Anya to use and at what time must she
begin work?
Bank XYZ can require Anya to use four-and-a-half hours of her accrued safe
and sick leave. Anya must begin work at 12:30 p.m.
Varun is scheduled to work from 9:00 a.m. to 5:00 p.m. on Friday.
He learns that his daughter has a hearing on an order of protection
scheduled for 10:00 a.m. on a Friday and notifies his employer of his
intent to use safe and sick leave and return to work the same day. The
employer’s written safe and sick leave policies require employees to use
a four-hour minimum increment of safe and sick leave per day and to use
leave in half-hour intervals that start on the hour or half-hour. If Varun
wanted to leave work at 9:40 a.m. to go to the 10:00 a.m. hearing, the
employer could require the employee to stop work at 9:30 a.m. When
must Varun return to work?
Varun must return to work at 1:30 p.m. because his employer requires that he
use a four-hour minimum increment of safe and sick leave. If Varun arrives to
work at 1:45 p.m., his employer can require him to use a half hour of time and
begin work at 2:00 p.m. because the employer’s safe and sick leave policies
require employees to use safe and sick leave in half-hour intervals that start on
the hour or half-hour.
35. If an employee gets sick in the middle of a scheduled vacation, can the employee use
safe and sick leave?
No. The employee cannot use safe and sick leave for time spent on a vacation because the
employee was not scheduled to work during the scheduled vacation.
Updated November 2, 2020 Page 24 of 41
36. Can employees use safe and sick leave during overtime that they were required
to work?
Yes. An employer must allow an employee to use safe and sick leave for any mandatory
overtime hours that an employee was scheduled to work.
37. Can an employee work additional hours or swap shifts instead of using safe and
sick leave?
Yes, but only with the consent of the employer. An employee can voluntarily agree to work
additional hours or swap shifts within the seven days before taking safe and sick leave, if the
safe and sick leave was foreseeable, or within the seven days after taking safe and sick leave.
An employer cannot require an employee to work additional hours or swap shifts to make up for
having used safe and sick leave.
Exception: An adjunct professor at an institute of higher education may work additional hours at
any time during the academic term.
38. Can an employer require an employee who wants to use safe and sick leave to find a
replacement employee for the missed hours?
No. An employer cannot require that an employee find a replacement employee as a condition
of using safe and sick leave.
39. Can an employer require an employee to telecommute or work from home instead of
taking safe and sick leave?
No. An employer cannot require an employee to work from home or telecommute instead of
taking safe and sick leave. But an employer can offer the employee the options of working from
home or telecommuting. An employee may voluntarily agree to work from home or telecommute
instead of using safe and sick leave.
40. Can an employer require employees to provide advance notice of the need to use safe
and sick leave?
Yes. An employer may require an employee to provide reasonable notice of the employee’s
foreseeable need to use safe and sick leave. Employers cannot require advance notice when
there is an unforeseeable need to use safe and sick leave, unless advance notice is practicable
under the circumstances.
41. Are employers required to have written safe and sick leave policies?
Yes. Employers must distribute written safe and sick leave policies personally when an
employee begins employment with the employer, within 14 days of the effective date of any
policy change, and upon employee request. The written safe and sick leave policies must
explain at a minimum:
• The amount of safe and sick leave provided by the employer
• If the employer uses an accrual system: when accrual of safe and sick leave starts, the
rate of accrual, and the maximum number of hours an employee may accrue in a
Calendar Year
• The procedures that an employee must follow to provide notice to the employer of a need
to use safe and sick leave
• All requirements for written documentation or verification of the use of safe and sick leave
Updated November 2, 2020 Page 25 of 41
• Any reasonable minimum increment and/or subsequent fixed interval for the use of
accrued safe and sick leave
• Any policy regarding consequences for employee’s failure or delay to provide required
documentation
• Any policy regarding employee discipline for misuse of safe and sick leave
• The employer’s policy regarding carryover of unused safe and sick leave at the end of the
Calendar Year
• If the employer uses a term other than “safe/sick time” or “safe and sick time” to describe
leave provided by the employer: a statement that employees may use the leave for safe
and sick leave purposes without any conditions prohibited by the Law
• A statement that the employer cannot require that employees, or a healthcare or service
provider, disclose personal health information or the details of the matter for which an
employee requests leave under the Law, and that the employer must keep information
about an employee or an employee’s family member obtained solely because of use of
safe and sick leave confidential unless the employee consents to disclosure in writing or
disclosure is required by law
An employer’s written safe and sick leave policies must meet or exceed all of the requirements
and restrictions under the Law. An employer may not distribute the Notice of Employee Rights
as required by the Law in lieu of maintaining, distributing, or posting written safe and sick leave
policies.
42. Can employers have other policies about time off that satisfy the requirements of
the Law?
Yes. Employers can provide leave benefits that aren’t called safe and sick leave benefits as long
as the time off meets or exceeds all of the requirements of the Law and employees can use
leave for the same safe and sick leave purposes permitted under the Law.
Example: Some employers give employees a bank of paid time off for any purpose: vacation,
sick leave, personal leave, etc. These employers do not have to provide additional time
designated specifically as safe and sick leave if employees can use the days in the bank for
safe and sick leave purposes and the employer’s written policies meet all of the Law’s
requirements.
If an employee has already accrued leave under a leave policy that was in existence prior to the
effective date of the Law, accruals may still be subject to the requirements of New York State
Labor Law § 198-c regarding benefits and wage supplements. For further guidance regarding
leave policies under New York State Labor Law, contact the New York State Department of
Labor, Division of Labor Standards.
Updated November 2, 2020 Page 26 of 41
43. When will an employer’s written policies about time off meet the requirements of
the Law?
A policy will meet or exceed the Law’s requirements and, therefore, be permissible under the
Law if it:
• Allows employees to take leave as unpaid or paid safe and sick leave (whichever type
applies to the employer depending on its size and/or net income).
• Allows employees to accrue at least 1 hour of safe and sick leave for every 30 hours
worked or provides employees with 40 or 56 hours of safe and sick leave at the
beginning of the Calendar Year.
• Allows employees to use up to 40 or 56 hours of accrued safe and sick leave in a
Calendar Year.
• Allows employees to use up to 40 or 56 hours of accrued safe and sick leave for the
same reasons and under the same conditions that safe and sick leave can be used under
the Law.
• Does not impose limitations, conditions, or requirements on the use of safe and sick
leave beyond those allowable under the Law.
• Allows employees to carry over up to 40 or 56 hours of unused safe and sick leave to the
next Calendar Year unless the employer uses a frontloading system and pays out
employees for unused safe and sick leave at the end of each Calendar Year.
• Provides that employees are paid at least their regular hourly rate but no less than the
New York State minimum wage for paid safe and sick leave.
• Allows employees to use safe and sick leave without retaliation, such as threats,
discipline, demotion, reduction in hours, or termination.
44. How must an employer provide written safe and sick leave policies to employees?
Employers must distribute written safe and sick leave policies personally when an employee
begins employment with the employer, within 14 days of the effective date of any policy change,
and upon employee request. An employer may not distribute the Notice of Employee Rights in
lieu of distributing or posting written safe and sick leave policies.
45. If an employer requires an employee to provide advance notice of the need to use safe
and sick leave, must the employer explain this requirement in their written safe and
sick leave policies?
Yes. An employer that requires advance notice must provide employees with a written policy
explaining procedures for giving notice.
Example: An employer can require an employee to call a designated phone number at which an
employee can leave a message. An employer’s notice policy must be reasonable, taking into
account whether the need for safe and sick leave is foreseeable or unforeseeable.
46. Can an employer make exceptions to its written safe and sick leave policies?
Yes. Employers can make exceptions to their written safe and sick leave policies for individual
employees provided that they are more generous to the employee than the terms of the
employer’s written policy.
Updated November 2, 2020 Page 27 of 41
47. Can an employer provide a more generous leave policy to some employees and
not others?
Yes. The Law provides minimum safe and sick leave requirements that apply to covered
employees. The Law also expressly encourages employers to provide more generous leave
benefits. As long as an employer gives all employees at least the benefits to which they are
entitled under the Law, the employer is not prohibited from providing only one group of
employees—for example, only full-time employees—with more generous leave benefits.
However, employers must ensure that its policies do not violate any other laws or regulations
that may apply, including anti-discrimination laws and regulations.
48. What is a foreseeable use of safe and sick leave? What amount of notice can an
employer require for foreseeable uses of safe and sick leave?
A foreseeable use of safe and sick leave occurs when the employee is able to predict or know in
advance that the employee will need to use safe and sick leave, such as a scheduled doctor’s
visit or court appointment.
If the need for safe and sick leave is foreseeable, the employer can require up to seven days’
advance written notice of an employee’s intention to use safe and sick leave, and the
employer’s written policy must describe how employees must provide notice.
49. What is an unforeseeable use of safe and sick leave? What policy can an employer
have for unforeseeable uses of safe and sick leave?
An unforeseeable need for sick leave occurs when employees require time to care for, or obtain
medical treatment for, themselves or a family member in a situation that was not reasonably
anticipated.
Example: An employee wakes up in the morning with a fever and does not feel well enough to
report for work that morning. This is an unforeseeable need for sick leave.
An unforeseeable need for safe leave occurs when employees require time to seek assistance
or take other safety measures for themselves or a family member in a situation that was not
reasonably anticipated.
Example: On her way to work, an employee believes she is being followed by her estranged
ex-husband against whom she has a protective order and goes to the nearest police station
rather than her office. This is an unforeseeable need for safe leave.
50. If an employee’s need to use safe and sick leave is unforeseeable, when and how
must an employee notify the employer?
If the need for safe and sick leave is unforeseeable, the employer may require an employee to
give notice as soon as practicable. An employer must include in its written safe and sick leave
policies the procedure for providing notice of an unforeseeable use of safe and sick leave, and
the procedure must be reasonable.
Example: Reasonable procedures may include instructing the employee to call a designated
phone number where the employee can leave a message, following a uniform call-in procedure,
or using another reasonable and accessible means of communication to inform the employer.
The procedures for providing notice of an unforeseeable need for safe and sick leave may not
Updated November 2, 2020 Page 28 of 41
include any requirement that an employee appear in person at a worksite or deliver any
document to the employer prior to using the leave.
An employer must consider the individual facts and circumstances of each situation in
determining at what point it is practicable for an employee to give notice.
51. Can an employer deny safe and sick leave or payment of safe and sick leave to an
employee who does not provide notice of the need to use leave?
Yes. However, an employer cannot deny safe and sick leave or payment for safe and sick leave
to an employee who fails to give reasonable notice if the employer did not distribute written safe
and sick leave policies that describe the steps that an employee must take to provide notice of
the need to use safe and sick leave. And the employer cannot deny safe and sick leave or
payment for safe and sick leave if the notice the employer required was not reasonable under
the circumstances.
Scenarios:
Edda schedules a doctor’s appointment a week ahead of time, but forgets to let
her employer, Security Co., know about it until a day in advance. Security Co.’s
reasonable written policy requires seven days’ advance notice for foreseeable
absences. Can Edda’s employer deny use of safe and sick leave when the
absence was foreseeable and Edda did not provide adequate notice in
accordance with the employer’s reasonable written policy?
Yes. An employer can require employees to comply with notice policies and
procedures if the absence is foreseeable and if notice is reasonable. If an employee
does not comply with notice policies and there is no evidence of retaliation by the
employer, an employer can deny use of safe and sick leave.
Employer Manufacturing Inc. has a written policy requiring employees to provide
at least three days’ advance notice to use safe and sick leave. Theresa calls out
of work one night because she needs to care for her granddaughter while her
daughter files a police report on a family offense matter. Can the employer deny
Theresa leave because of her failure to provide three days’ advance notice of her
need to use safe and sick leave?
No. Theresa’s need for safe and sick leave was unforeseeable, and she gave notice of
the need to use leave for safe leave purposes as soon as practicable. Manufacturing
Inc.’s safe and sick leave policies did not meet the Law’s minimum requirements
regarding unforeseeable uses of safe and sick leave.
52. Can an employer require an employee to disclose the reason for using safe and
sick leave?
No. 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 safe and sick leave, except as required by law or with the employee’s written consent.
Updated November 2, 2020 Page 29 of 41
The employer can:
• Require a note from a licensed medical provider after more than three consecutive
workdays of sick leave, attesting to both the existence of a need for sick leave and the
amount of work hours or days used as sick leave.
• Require documentation from a social service provider, legal service provider, or member
of the clergy, or a copy of a police report, court record, or a notarized letter written by the
employee indicating the need for safe leave after more than three consecutive days of
safe leave.
• Ask for a date on which the employee is cleared to return to work.
• Ask the employee to submit written verification that the employee used safe and sick
leave for safe and sick leave purposes.
9
Scenario:
Eun tells her supervisor that she needs three days of leave. She shows her
supervisor a letter from her social worker stating that Eun was a victim of a
human trafficking crime, and she needs time to handle housing and legal
matters. Can Eun’s supervisor require her to provide more information about her
need to take safe leave?
No. Eun has provided a letter from a social service provider explaining her need to take
leave to handle matters related to being a victim of a human trafficking crime. Eun’s
employer may not request any more information about her need to take leave.
53. Can an employer require an employee using sick leave to provide documentation from
a licensed health care provider?
Yes, but only if the employee uses more than three consecutive workdays* as sick leave and
only if that requirement is part of written sick leave policies that the employee received prior to
using the sick leave.
The employer can require the employee to provide written documentation signed by a licensed
health care provider confirming both:
i. the need for the amount of sick leave taken; and
ii. that the use of sick leave was for a purpose authorized under the Law.
The Law prohibits employers from requiring the health care provider to specify the medical
reason for sick leave, though disclosure may be required by other laws.
*“Workdays” means the days or parts of days the employee was scheduled to work had the
employee not used sick leave.
9
A model form that employers can use to verify use of safe and sick leave is available at nyc.gov/workers
Updated November 2, 2020 Page 30 of 41
54. Who pays for the documentation when the employer requires sick leave
documentation after more than three days of use?
Employers must reimburse employees for fees charged by health care providers for sick leave
documentation the employer requested.
55. Can an employer require an employee using safe leave to provide documentation?
Yes, but only if the employee uses more than three consecutive workdays of safe leave and
only if that requirement is part of written safe leave policies that the employee received prior to
using the safe leave.
Reasonable documentation may include a document from a social service provider, legal
service provider, or member of the clergy, a copy of a police report, court record, or a notarized
letter written by the employee indicating the need for safe leave. The documentation need only
verify that there is a need to take safe leave.
An employer may not require an employee to provide the specific details of any act or threat of
domestic violence, unwanted sexual contact, stalking, or human trafficking for which the
employee needs to take safe leave.
56. Who pays for the documentation when the employer requires safe leave
documentation after more than three days of use?
Employers must reimburse employees for all reasonable costs for safe leave documentation the
employer requested.
57. How much time must an employer give an employee to submit written documentation
if that employee used more than three consecutive days of safe and sick leave?
If an employer requires an employee to submit written documentation, the employee has seven
days from the date the employee returns to work to submit the documentation.
58. Can an employer require documentation if the safe and sick leave is three consecutive
workdays or less?
No. An employer can ask the employee to submit written verification that the employee used
safe and sick leave for safe and sick leave purposes but cannot require documentation when
the employee uses three consecutive workdays or less for safe and sick leave. A workday does
not need to be a full day if the employee works part time.
Scenario:
Bill’s work schedule is three hours per day on Monday, Tuesday, Wednesday,
and Friday. One week, he uses sick leave on each of these four days. Can his
employer require documentation?
Yes. Bill used sick leave for four consecutive workdays. His employer can require
documentation from a licensed health care professional.
Updated November 2, 2020 Page 31 of 41
59. Can an employer require the employee to confirm in writing that the employee used
safe and sick leave as permitted under the Law?
Yes. An employer can require the employee to confirm in writing that the employee used safe
and sick leave for permitted purposes. However, the employer cannot require the employee to
provide documentation from a medical or service provider if the employee did not use safe and
sick leave for more than three consecutive workdays.
60. Can an employer require a second opinion to verify that the documentation is valid?
No. If the employee provides documentation, the employer cannot require a second opinion.
61. Can an employer require an employee to specify the nature of the health condition or
the act or threat of domestic violence, unwanted sexual contact, stalking, or human
trafficking matter causing the employee to use safe and sick leave?
The Law does not require disclosure. Under the Law:
• An employer cannot require employees or their health care providers to specify the
nature of an employee’s or employee’s family member’s injuries, illness, or condition,
except as required by other laws.
• An employer cannot require an employee to provide the specific details of any act or
threat of domestic violence, unwanted sexual contact, stalking, or human trafficking for
which the employee needs to take safe leave.
As noted, disclosure may be required by other laws.
62. Do employers have to keep information about their employees’ need to take safe and
sick leave confidential?
Yes. An employer must keep information about an employee or an employee’s family member
obtained solely because of the Law confidential unless the employee consents to disclosure in
writing or disclosure is required by other laws.
The employer may consider the information if an employee requests a “reasonable
accommodation” as the victim of domestic violence, a sex offense, or stalking under the New
York City Human Rights Law.
10
63. Can an employer discipline an employee who misuses safe and sick leave?
Yes. An employer may take disciplinary action, up to and including termination, against an
employee who uses safe and sick leave for purposes other than those provided for under the
Law. However, a mistaken use of safe and sick leave does not qualify as misuse and is
protected from retaliation.
10
For more information about the Human Rights Law, visit the New York City Commission on Human Rights
website nyc.gov/humanrights
Updated November 2, 2020 Page 32 of 41
64. What are signs of possible misuse of safe and sick leave?
Indications of using safe and sick leave for purposes other than those described in the Law
include, but are not limited to, a pattern of:
• Using unscheduled safe and sick leave on or adjacent to weekends, regularly scheduled
days off, holidays, vacation, or payday.
• Taking leave on days when other leave has been denied.
• Taking leave on days when the employee is scheduled to work a shift or perform duties
perceived as undesirable.
Evidence that an employee engaged in an activity that is not consistent with permitted uses of
safe and sick leave under the Law may also indicate misuse of safe and sick leave.
V. HOW SAFE AND SICK LEAVE IS PAID
1. How much does an employer have to pay an employee for paid safe and sick leave?
When an employee uses paid safe and sick leave, the employer must pay the employee what
the employee would have earned for the amount of time and the type of work the employee was
scheduled to perform at the time the safe and sick leave is taken.
Under no circumstance can an employer pay an employee for safe and sick leave at less than
the full minimum wage under New York State minimum wage laws and regulations.
11
2. If an employee uses safe and sick leave during hours that would have been overtime if
worked, does the employer have to pay the overtime rate of pay?
No. Employers are not required to pay the overtime rate of pay for safe and sick leave used.
3. How much does an employer have to pay an employee for paid safe and sick leave if
the employee is paid a tipped wage, i.e., less than the legal minimum wage on the
expectation they earn tips?
The employer must pay the employee at least the full minimum wage, without any allowance or
credit for tips or otherwise, for each hour of safe and sick leave used.
4. Are employees entitled to tips they would have earned during safe and sick leave?
No. Employees are not entitled to lost tips or gratuities during use of safe and sick leave.
5. Does the employer have to consider the employee’s bonus in calculating the
employee’s rate of pay for paid safe and sick leave?
No. If the amount of a bonus is wholly within the discretion of the employer, then the employer
does not need to count the bonus when determining the employee’s rate of pay for safe and sick
leave purposes.
6. If an employee is paid in cash and supplements, as defined in section 220(5)(b) of New
York State Labor Law, must the employer pay cash instead of supplements when the
employee uses safe and sick leave?
No.
11
For information about minimum wage rates, visit the New York State Department of Labor website labor.ny.gov
and search “Minimum Wage.”
Updated November 2, 2020 Page 33 of 41
7. Will the payment of cash instead of supplements, as defined in section 220(5)(b) of
New York State Labor Law, relieve the employer from complying with the Law?
No. The employer must comply with the Law regardless of the manner in which the employee
is paid.
8. If an employee has two different jobs for the same employer, or if an employee’s rate
of pay fluctuates for the same job, what should the rate of pay be for safe and sick
leave used?
The rate of pay should be what the rate of pay would have been during the time that the
employee was scheduled to work when the employee used the safe and sick leave.
Scenario:
Diep works for a clothing store. She works as a cashier three hours in the
morning for $10 per hour. The remaining five hours of the day she
manages the store’s back office for $15 per hour. Diep is scheduled to
work eight hours on Saturday. She takes the day off for a safe leave
matter. How much is the clothing store required to pay for her eight
hours of safe and sick leave?
The clothing store must pay Diep $10 per hour for the first three hours of
leave ($30) and $15 per hour for the next five hours of leave ($75), for a total
of $105.
9. An employee volunteers to work hours in addition to a normal schedule at a pay
rate higher than the employee’s regular hourly wage. If the employee uses safe and
sick leave during these additional voluntary hours, how much should the employee
be paid?
Employees who volunteer to work hours in addition to their normal schedule would be paid at
their normal pay rate if they take safe and sick leave.
10. How much does an employer have to pay an employee for safe and sick leave if the
employee’s salary is paid by commission?
If an employee is paid by commission (whether base wage plus commission or commission
only), the employer must pay the employee for safe and sick leave at an hourly rate that is the
base wage or the minimum wage, whichever is greater.
11. How much does an employer have to pay an employee for paid safe and sick leave if
the employee is paid at a flat rate regardless of the number of hours worked?
The employer must add together the employee’s total earnings, including tips, commissions,
and supplements, for the most recent workweek in which the employee did not take paid safe
and sick leave, and divide the total by the number of hours the employee worked in that week,
or 40 hours, whichever number is less. In doing this calculation, the employer should consider
workdays to mean the days or parts of days the employee worked. In no event can the rate of
pay for piecework be less than the minimum wage.
Updated November 2, 2020 Page 34 of 41
12. How should an employer determine the amount of safe and sick leave that must be
paid when an employee has jobs, assignments, projects, or shifts of varying or
indeterminate lengths?
For work or shifts of an indeterminate length (e.g., shift until “closing” instead of a specified end
time or a job that lasts until the required work is completed), employers should base the hours of
safe and sick leave used and paid on the hours worked by a replacement employee for the
same shift. If there is no replacement employee, employers should base the hours of safe and
sick leave on the hours worked by the employee or a similarly situated employee in the same or
similar shift in the past.
13. How soon must employees be paid after they take paid safe and sick leave?
An employee must be paid no later than the payday for the next regular payroll period beginning
after the employee took paid safe and sick leave. However, if the employer has asked for written
documentation or verification of use of safe and sick leave from the employee, the employer is
not required to pay for safe and sick leave until the employee has provided the requested
documentation or verification.
An employer cannot delay payment of safe and sick leave beyond the next regular payroll
period beginning after the employee took paid safe and sick leave if the employer’s written safe
and sick leave policies do not include the requirement that employees provide documentation
for more than three consecutive workdays of safe and sick leave, the time and manner in which
the employee must provide documentation, and the consequences for not providing it.
14. Can an employer deduct money from an employee’s wages to cover the cost of paid
safe and sick leave?
No. An employer required to provide paid safe and sick leave cannot require an employee to
pay for all or part of that leave.
VI. RETALIATION
1. Can an employer penalize an employee for using safe and sick leave?
No. Retaliation is illegal. No person—including but not limited to an employer—can retaliate
against employees or prevent them from exercising or attempting to exercise rights under the
Law, including by:
• Requesting and using safe and sick leave.
• Filing a complaint with DCWP for violations of the Law.
• Communicating with any person, including coworkers, about any violation of the Law.
• Participating in an administrative or judicial action regarding any violation of the Law.
• Informing another person of that person’s rights under the Law.
2. What is retaliation?
Retaliation is any act that penalizes an employee for, or is reasonably likely to deter an
employee from, exercising rights under the Law. It can include threats, intimidation, discipline,
discharge, demotion, suspension, harassment, discrimination, reduction in hours or pay,
informing another employer of an employee’s exercise of rights under the Law, blacklisting, and
maintenance or application of an absence control policy that counts safe and sick leave as an
absence that may lead to or result in an adverse action.
Updated November 2, 2020 Page 35 of 41
Retaliatory acts include actions related to an employee’s perceived immigration status or
work authorization.
An employee does not have to explicitly refer to a specific section of the Law in order to be
protected from retaliation. The Law’s anti-retaliation provision applies even if the employee
mistakenly but in good faith asserts or exercises rights under the Law. And retaliation can be
shown when an employee’s exercise or attempted exercise of rights motivated the employer to
take the retaliatory action, even if other factors may also have motivated the employer.
Scenario:
Cara has been working for Great Supermarket for three years and never received
a Notice of Employee Rights or her employer’s written safe and sick leave
policies. She asks her manager about whether she can be paid for a week off
because she needs oral surgery. Her manager tells her no, and they have a short
verbal disagreement. The next day, Cara is fired and told it’s because of
insubordination the previous day. Could this be retaliation?
Yes. Cara attempted to exercise her right to paid safe and sick leave, and her
employer punished her with termination because of that attempt. Her request to use
sick leave motivated her employer to fire her.
VII. EMPLOYER RECORDS
1. What records must an employer keep?
Employers should keep their current and past written safe and sick leave policies.
Employers must keep and maintain records—including employment, payroll, and timekeeping
records—documenting their compliance with the requirements of the Law, specifically those
records that show, for each employee:
• Name, address, phone number, start date of employment, end date of employment
(if applicable), rate of pay, and whether the employee is exempt from the overtime
requirements of New York State Labor Law and related regulations
• Hours worked each week (unless the employee is exempt from the overtime
requirements of New York State Labor Law and related regulations and has a regular
workweek of 40 or more hours)
• Date and time of each instance of safe and sick leave used, and the amount paid for
each instance
• Any change in the material terms of employment specific to the employee
• Date that the Notice of Employee Rights was provided to the employee and proof that it
was received by the employee
2. How long must employers keep records required under the Law?
Employers must keep and maintain records for at least three years, unless otherwise required
under other laws.
Updated November 2, 2020 Page 36 of 41
3. When must employers make records available to DCWP?
An employer under investigation by DCWP must provide requested records within 14 days of
DCWP’s Notice of Investigation.
4. What are the consequences of an employer’s failure to maintain or produce records
following a request by DCWP?
An employer’s failure to maintain or produce a record that is required to be maintained under the
Law may subject the employer to civil penalties and, if relevant to a material fact alleged by
DCWP in an enforcement proceeding, may create a reasonable inference that the fact is true.
5. Can an employer maintain electronic records?
Yes. An employer can keep electronic records as long as the employer is able to produce the
records in a manner in which they can be readily inspected or examined by DCWP and as long
as employees’ or their family members’ health or other sensitive information obtained solely
because of the Law is kept confidential, unless the employee permits disclosure or disclosure is
required by other laws.
6. If an employer provides employees with leave benefits that exceed the Law’s
requirements, must the employer maintain records?
Yes. Employers must maintain records documenting compliance with the Law, including if the
employer complies with the Law by providing even more benefits than what the Law requires.
7. Are the Law’s recordkeeping requirements the same as those in other state laws
(e.g., New York State Labor Law) or federal laws (e.g., Internal Revenue Code) that
apply to employers?
No. The City Law requires employers to maintain records documenting compliance with the City
Law for three years. Employers must comply with other laws and rules that apply to their
businesses and their recordkeeping practices.
VIII. COMPLAINTS AND ENFORCEMENT
1. Can employees file complaints with DCWP?
Yes. Employees can file complaints with DCWP if they believe their rights under the Law have
been violated. The complaint form is available online at nyc.gov/workers or by contacting 311
(212-NEW-YORK outside NYC).
Employees can also call 311 and ask to be transferred to a DCWP representative to assist them
in filing a complaint over the phone.
2. Is there a deadline for employees to file complaints with DCWP?
Employees must file their complaint within two years of the date they knew or should have
known of the violation(s) they allege.
3. Does DCWP have to investigate all complaints?
Yes. The Law requires DCWP to investigate all complaints it receives.
Updated November 2, 2020 Page 37 of 41
4. Must employers respond to complaints?
Yes. If an employee files a complaint with DCWP, DCWP will contact the employer to request
documents, information, and other responses to the investigation. The employer has 14 days
to respond.
5. What does DCWP do with complaints?
DCWP investigates complaints to identify any potential violations of the Law. This generally
involves collecting information from the employee, the employer, and any other parties that may
have relevant information. If, as a result of its investigation, DCWP believes a violation has
occurred, DCWP works with the employer to come into compliance and attempts to resolve the
case without further enforcement proceedings, including court proceedings.
If DCWP and the employer are unable to reach a resolution, DCWP may pursue appropriate
remedies by initiating a proceeding at the New York City Office of Administrative Trials and
Hearings (OATH).
6. Does DCWP keep employees’ identities confidential?
Yes. DCWP keeps the identity of complainants and witnesses—including people who provide
information to DCWP who are not complainants—confidential unless disclosing their identity is
necessary to resolve the investigation or is otherwise required by law. DCWP will notify
complainants before disclosing their identity whenever possible.
7. Does my immigration status affect my ability to file a complaint?
No. All workers have the same rights and protections under the Law, regardless of immigration
status. DCWP does not collect any information about a complainant’s immigration status to
pursue a complaint.
8. Does DCWP conduct routine, unannounced inspections of employers?
No. The Law allows DCWP to conduct on-site employer visits upon 30 days’ notice, unless the
employer agrees to a lesser amount of time. In general, inspections will be conducted at a
mutually agreeable time of day.
Exceptions:
DCWP may conduct on-site inspections without 30 days’ notice in certain limited circumstances.
These include circumstances when DCWP has reason to believe:
• An employer will destroy or falsify records.
• An employer is about to declare bankruptcy or is otherwise disposing of its assets.
• An employer is the subject of a labor-related government investigation or enforcement
action.
• The employer is engaging in retaliation.
If the employer does not respond to two attempts by DCWP to arrange a mutually agreeable
time of day, DCWP may set a time for an inspection upon two days’ advance notice.
9. Can DCWP conduct safe and sick leave investigations on its own initiative?
Yes. The Law authorizes DCWP to conduct an investigation on its own initiative when it has
reason to believe that an employer’s practices warrant investigation. DCWP does not need to
have an employee complaint in order to begin an investigation.
Updated November 2, 2020 Page 38 of 41
10. Can DCWP issue subpoenas?
Yes. DCWP may issue subpoenas to investigate an employer’s compliance with the Law. When
a subpoena is issued, DCWP must give 30 days’ written notice that the employer must provide
DCWP with access to its records. DCWP may give less than this amount of notice in the limited
circumstances described in FAQ 8 in this section.
11. Can DCWP issue violations for failing to respond to an investigation?
Yes. DCWP may bring a proceeding at OATH against an employer who fails to respond to an
investigation, or fails to provide information, records, or access to records requested by DCWP
in connection with an investigation. An employer will have opportunities to comply by producing
the requested information or records, and will face reduced or no civil penalties if it does so
before the first scheduled appearance date at OATH.
12. After DCWP brings a proceeding at OATH, do employers still have an opportunity
to settle?
Yes. DCWP and the employer may settle at any point after an enforcement proceeding is filed
at OATH.
13. What happens if an employer chooses not to settle violations and have charges heard
before OATH?
An Administrative Law Judge (ALJ) from OATH’s Trials Division hears testimony from DCWP,
the employer, and any witnesses. Under the Law, the ALJ may order an employer to provide an
employee whose rights have been violated with the following:
• Three times the wages that should have been paid for each time the employee took safe
and sick leave but wasn’t paid or $250, whichever is greater
• $500 for each time the employee was unlawfully denied safe and sick leave requested by
the employee or was required to find a replacement worker, or each time the employee
was required to work additional hours to make up for safe and sick leave taken without
mutual consent of the employer and the employee
• Full compensation, including lost wages and benefits, damages of $500 to $2,500, and
appropriate equitable relief for each time the employer retaliated against the employee for
taking safe and sick leave
Following a trial, OATH issues recommended decisions that are reviewed by DCWP’s
Commissioner who has the authority to issue a final decision.
14. What are the maximum penalties for violations of the Law?
In addition to the monetary relief that an employer may be required to pay to employees whose
rights were violated, the Law also provides the following civil penalties for violations of the Law:
• Up to $500 for failure to timely or fully respond to DCWP’s request for information or
documents before the first scheduled appearance date
• Up to $500 per employee for each first-time violation
• Up to $750 per employee for each second violation within two years of a prior violation
• Up to $1,000 per employee for each subsequent violation that occurs within two years of
any previous violation
• Up to $50 for each employee who was not given the required Notice of Employee Rights
Updated November 2, 2020 Page 39 of 41
15. What happens if the employer has an official or unofficial policy or practice of
not providing or refusing to allow the use of safe and sick leave as required under
the Law?
The finding that an employer has such a policy or practice constitutes a violation of the Law for
each and every employee affected by the policy. For each employee who was affected by such
a policy, the employer may be liable for payment of both monetary relief and civil penalties. In
other words, there is no need to show that each employee was specifically denied safe and sick
leave in at least one instance.
16. What happens if an employer does not allow accrual of safe and sick leave as
required by the Law?
The relief granted to each and every employee affected by the policy or practice will include
either:
i. addition of 40 hours of leave to the employee’s safe and sick leave balance; or
ii. (if the number of hours denied to the employee is known) addition of the number of hours
of leave the employee should have accrued to the employee’s safe and sick leave
balance, provided that the balance does not exceed 80 hours.
17. Does the Law authorize employees to bring an action in court to enforce their rights?
No. The Law does not give employees the right to initiate actions in court to enforce their rights
under the Law. However, employees retain any other rights they may have under other local,
state, or federal laws.
18. Can anyone besides DCWP bring an action in court to enforce employees’ rights
under the Law?
Yes. The Law authorizes the New York City Law Department (or its designee) to file cases
against employers in state court. Such cases may be brought to:
• mandate the employer’s compliance with the Law;
• obtain injunctions; and
• force the employer to stop any acts or practices that are unlawful under the Law.
The Law also authorizes the New York City Law Department (or its designee) to file cases in
state court against employers that have a pattern or practice of violating the Law. Such cases
may be brought to seek:
• monetary relief;
• civil penalties;
• injunctive relief; and
• any other appropriate relief.
In exercising this authority, the New York City Law Department (or its designee) has the power
to issue subpoenas to employers for information, records, and testimony.
Updated November 2, 2020 Page 40 of 41
IX. OTHER FEDERAL AND STATE LAWS RELATED TO LEAVE
1. Does New York State also require employers to provide safe and sick leave?
Yes. As of September 30, 2020, New York State requires covered employers to provide paid or
unpaid safe and sick leave to covered employees.
Employers with 4 or fewer employees:
• must provide up to 40 hours of unpaid safe and sick leave if the employer had a net
income of less than $1 million in the previous tax year.
• must provide up to 40 hours of paid safe and sick leave if the employer had a net income
of $1 million or more in the previous tax year.
Employers with 5 or more employees regardless of income:
• must provide up to 40 hours of paid safe and sick leave.
Employers with 100 or more employees regardless of income:
• must provide up to 56 hours of paid safe and sick leave.
2. Is there a difference between the City Law and the State Law?
Yes. The two laws are similar but not identical, and you should consult your legal advisor with
any specific questions.
In general, similarities include:
• the amount of leave employees must get based on the employer’s size and/or
net income; and
• the reasons employees can use leave.
Many other important elements are the same in both laws.
The City Law must remain as good as or better than the State Law. In fact, the City Law
specifically provides that any future standards in the State Law that surpass those in the City
Law will be automatically adopted and incorporated in the City Law.
3. If the City Law and the State Law are so similar, who enforces safe and sick leave laws
in New York City?
DCWP and the New York State Department of Labor have overlapping enforcement authority
when it comes to safe and sick leave benefits for covered employees in New York City.
4. Are there leave benefits under the Family Medical Leave Act (FMLA) and Americans
with Disabilities Act (ADA) (federal laws) and New York State Human Rights Law?
No. These federal and state laws do not require employers to give time off with pay.
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5. Is the City Law the same as the federal Family and Medical Leave Act (FMLA)?
No. Although both laws have to do with leave, FMLA provides qualified employees with
12 weeks of job-protected unpaid leave for specific purposes. FMLA only applies to employers
that meet certain criteria, and only eligible employees are entitled to take FMLA leave.
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6. Is the City Law the same as the New York State Paid Family Leave Law (PFL)?
No. PFL provides qualified employees with 8 weeks of partially paid leave to:
• Bond with a newly born, adopted, or fostered child.
• Care for a close relative with a serious health condition.
• Assist loved ones when a family member is deployed abroad on active military service.
The length and monetary amount of leave change every year.
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7. Can an employee’s use of safe and sick leave be counted toward leave under
other laws?
Yes. An employee’s use of safe and sick leave may be counted toward concurrent leave under
state or federal law, such as FMLA.
8. What about overlapping jurisdiction between federal and state laws and City Law—
which would take precedence?
Federal and state laws take precedence when they require employers to do more than the City
Law does.
Examples:
• Depending on the facts in a particular situation, under FMLA, an employer may
be required to provide intermittent time off in increments of time that are less than
four hours.
• Depending on the facts in a particular situation, under ADA or New York State Human
Rights Law, an employer may be required to provide a leave of absence to an employee
with a disability that is longer than the amount of safe and sick leave an employer must
provide under the City Law. In addition, when an employer is asked to provide leave
under federal or state law that goes beyond what the employee is entitled to under the
City Law, the employer may be able to ask the employee to provide more information
about a medical condition or disability than the employee would be required to provide
under the City Law.
It will often be the case that an employer can meet the requirements of federal law and the City
Law at the same time by allowing time off with pay. Moreover, leave that an employer provides
under the City Law would generally count toward meeting obligations under federal and state
laws, even though additional leave may be required under those laws.
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For more information about FMLA, visit the U.S. Department of Labor website dol.gov/whd
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For more information on New York State Paid Family Leave, visit paidfamilyleave.ny.gov
