Just two business days before amendments to the city’s Earned Safe and Sick Time Act (ESSTA) took effect on February 22, 2026, New York City’s Department of Consumer and Worker Protection (DCWP) released updated Frequently Asked Questions and a Notice of Employee Rights.

Further, DCWP will hold a public hearing on March 2, 2026, regarding proposed revisions to ESSTA’s implementing rules. The majority of the proposed revisions, published in a Notice of Public Hearing and Opportunity to Comment, implement the now-effective ESSTA amendments and answer some employer questions regarding these changes.

What You Need to Know:

  • Expanded Leave and Uses: The proposed rules reflect the expanded scope of the amended ESSTA, which provides an additional 32 hours of unpaid leave for all employees (including new hires) annually, starting now, and adds authorized uses for protected time off.
  • Clarification on More Generous Policies: Employers with more generous policies can satisfy the new unpaid leave requirement by frontloading at least 32 hours of paid leave instead of providing unpaid leave.
  • Policy and Paystub Requirements: Employers need to update written policies to specify the amount of unpaid leave available and update paystubs to show the balance, accruals, and use of both paid and unpaid time off.

A Quick Refresher

As discussed in our prior Insight, late last year, the New York City Council approved amendments to ESSTA that granted an additional 32 hours of unpaid leave to new hires upon hire and to existing employees on the first day of each calendar year. This bank of unpaid leave is immediately available for use and is provided in addition to paid sick and safe time available under ESSTA.

The amendments also expanded the uses for which an employee can take protected time off and narrowed employer obligations under the city’s Temporary Schedule Change Law. In addition, the amendments codified New York State’s requirement that employers provide eligible employees with at least 20 hours of paid prenatal leave.

New Reasons for ESSTA Use

The proposed rules and updated FAQs reflect the expanded scope of the amended ESSTA and relabel what was previously referred to as “safe/sick time” as “protected time off.” Both incorporate the additional authorized uses for protected time off reflected in the recent amendment, including:

  • to care for their own health needs or those of a family member, including attending a family member’s prenatal care appointments;
  • to care for a minor child, family member, or household member with a disability;
  • to attend legal proceedings or take other actions relating to subsistence or housing benefits;
  • to seek assistance or take safety measures if the employee or a family member is a victim of domestic violence, unwanted sexual contact, stalking, human trafficking, or workplace violence; and
  • to stay home when the government declares a public disaster.

With respect to public disasters, the updated FAQs clarify that employees can use protected time off to stay home during a severe weather event, when directed to remain indoors or avoid travel by a government official, or when the employee’s workplace or employee’s child’s school or daycare is closed, so long as the event is declared a state of emergency or public disaster by the President of the Unites States, the governor of New York State, or the mayor of New York City. Employees can also use protected time off when the city of New York declares a public health emergency.

The updated FAQs also explain that employees experiencing domestic violence themselves or assisting a family member can use protected time off for reasons including:

  • to enroll children in school,
  • to get divorced,
  • to apply for public benefits, and
  • to manage child custody disputes.

Employees can also use protected time off to care for their child on school holidays and even when a babysitter cancels.

Questions Answered by the FAQs

Critically, the updated FAQs clarify that employers are required to provide at least 32 hours of unpaid leave to existing employees starting February 22, 2026, a question left previously unaddressed by the city’s amendments and proposed rules. Thereafter, employers must provide a bank of 32 hours of immediately available, unpaid protected time off on the first day of the calendar year, as determined by the employer. Employers are not required to carry over unused immediately available hours from year to year.

In addition, the proposed rules and updated FAQs clarify that employers can meet their obligation to provide 32 hours of unpaid leave by offering a total amount of paid leave that is equivalent to the combined paid and unpaid leave requirements, as long as a minimum of 32 hours is available for immediate use. In practical terms, this means any small employer with 99 or fewer employees, which would be required to provide 40 hours of paid leave under ESSTA, could satisfy the new unpaid leave requirement by frontloading at least 72 hours of paid leave (equivalent to the total of the employer’s paid and unpaid leave obligations) at the start of each year. Similarly, a large employer could provide at least 88 hours of paid leave (equivalent to the total of the employer’s paid (56 hours) and unpaid (32 hours) leave obligations) frontloaded at the start of each year to satisfy the new unpaid leave requirement. Presumably, if an employer’s paid bank of time does not meet these thresholds, additional unpaid time must be granted, pursuant to ESSTA.

Alternatively, and as originally contemplated by the law, employers could frontload 32 hours of unpaid leave and then allow employees to accrue paid leave as the year progresses.

The proposed rules and updated FAQs also explain that if an employee has both paid and unpaid leave, employers should use an employee’s paid leave balance before depleting unpaid leave, unless the employee has specifically requested to use unpaid leave. In such a situation, once an employee has exhausted their accrued paid leave, unpaid leave may then be applied for qualifying protected leave. Unpaid leave can also be used if specifically requested or if the employee has not accrued enough paid leave.

Policies, Paystubs, and Notices

Additionally, the proposed rules and updated FAQs require employers to specify, in a written policy, the amount of unpaid protected time off available and that such time is immediately available for use on the first day of employment and the first day of each new calendar year.

The proposed rules and updated FAQs clarify that employers will need to include on employee paystubs (i) the amount of protected time off accrued during the relevant pay period, (ii) the amount of protected time off and paid prenatal leave used during the relevant pay period, (iii) the total balance of accrued protected time off and paid prenatal leave, and (iv) the amount of unpaid protected time off available for immediate use.

Lastly, the DCWP released an updated version of the Notice of Employee Rights, which must be visibly posted in the workplace and reissued to current employees immediately. New hires will also need to receive this updated notice upon hire.

Enforcement and Penalties

The proposed rules add references to an employer’s failure to provide (i) the additional 32 hours of unpaid leave, (ii) the expanded uses for protected time off, and/or (iii) paid prenatal leave to the existing enforcement and penalty provisions. The proposed rules also seek to add a mandatory remedy for any employee affected by an employer’s policy or practice (whether official or unofficial) that fails to permit the use of paid prenatal leave. Such remedies would include adding 20 hours of paid prenatal leave to the affected employee’s paid prenatal leave balance and a penalty of $500 per employee per calendar year during which the policy or practice was in effect. The city is expected to increase enforcement efforts with respect to ESSTA.

The proposed rules will not be implemented until after the hearing on March 2, 2026, and subsequent DCWP action will be needed to issue final rules. The DCWP is accepting comments about the proposed rules online, in person at the hearing, and via email.

What NYC Employers Should Do Now

  • Work with counsel and internal teams to update protected time off policies to comply with new ESSTA obligations.
  • Ensure that employee paystubs are properly recording leave balances, accruals, and use for both paid and unpaid time off.
  • Post and provide the updated Notice of Employee Rights.
  • Stay aware as further guidance and final rules are published.

* * * *

For additional information about the issues discussed in this Insight, please contact the attorney(s) listed on this page or the Epstein Becker Green Employment, Labor & Workforce Management attorney who regularly handles your legal matters.

Staff Attorney Elizabeth A. Ledkovsky also contributed to the preparation of this Insight.

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