New York City employers are subject to both the New York State Sick Leave Law (NYSSL) and NYC’s Earned Safe and Sick Time Act (ESSTA). While the two laws overlap, they are not identical. When they differ, employers must follow the provision that gives employees greater leave or broader protections.
That sounds simple in theory. In practice, it can be confusing.
Below is a practical list summarizing the more generous rules that apply to private, non-union, non-household employers with employees working in NYC.
Importantly, amendments to ESSTA take effect on February 22, 2026, and include several important updates, which are highlighted below.
Covered Employers: Private employers with employees who perform work in NYC must comply.
Eligible Employees: These requirements apply to employees who perform work in NYC, including employees who telecommute while physically located in NYC.
Leave Amount and Accrual: Employees accrue one hour of leave for every 30 hours worked. The amount of paid or unpaid leave required depends on employer size and prior-year net income:
- 1–4 employees and prior-year net income under $1 million: up to 40 hours unpaid
- 1–4 employees and prior-year net income over $1 million: up to 40 hours paid
- 5–99 employees: up to 40 hours paid
- 100+ employees: up to 56 hours paid
Frontloading: Employers may frontload the full annual leave allotment at the beginning of the year instead of tracking accrual, but may not reduce frontloaded leave if an employee’s hours later decrease.
Waiting Period: Employees may begin using leave as soon as it is accrued. There is no waiting period.
Usage Caps: Employers may cap annual leave use at:
- 40 hours per year for employers with 1–99 employees
- 56 hours per year for employers with 100+ employees
Carryover: Unused sick and safe leave must generally be carried over from year to year, subject to the annual usage caps (40 or 56 hours, depending on employer size).
NYC allows employers to avoid carryover if they (1) pay out unused leave at the end of the year and (2) frontload the full annual leave allotment on the first day of the new year. However, New York State law does not contain the same broad frontloading exception.
What does this mean for NYC employers? Carryover should be treated as the default rule. If you intend to use a payout/frontloading model, your policy must clearly provide for year-end payout (before the end of the year) and full frontloading at the start of the new year. Frontloading alone is not enough.
Employers that choose this approach should review their written leave policies carefully to ensure they reflect this structure, including the amount of frontloaded time provided.
Permitted Uses: Employers must allow leave to be used for the following purposes:
Employee or Family Health Needs
Leave may be used for: (1) diagnosis, care, treatment, or recovery from a mental or physical illness, injury, or health condition; (2) preventive medical care; (3) medical appointments or treatment; and/or (4) caring for a family member with a mental or physical health condition.
For leave purposes, “family member” should include: child (biological, adopted, foster, legal ward, or in loco parentis); spouse or domestic partner; parent (biological, foster, step, adoptive, guardian, or in loco parentis); sibling; grandparent or grandchild; child or parent of a spouse or domestic partner; any individual related by blood; and any individual whose close association with the employee is equivalent to a family relationship.
Public Health / Public Disaster Closures
Leave may be used when: (1) the employee’s workplace closes due to a public health emergency or, public disaster (the latter is NEW Effective February 22, 2026); (2) a child’s school or place of care closes due to a public health emergency or public disaster; and/0r (3) the employee needs to care for a family member under those circumstances.
Safe Time — Domestic Violence, Sexual Offenses, Stalking, Human Trafficking, or Workplace Violence
Leave may be used when the employee or a family member is a victim of: domestic violence; family offense; sexual offense; stalking; human trafficking; and/or workplace violence (NEW Effective February 22, 2026).
Permitted activities include: (1) obtaining services from a domestic violence shelter, rape crisis center, or other services program; (2) participating in safety planning or relocation; (3) meeting with an attorney or social services provider; (4) preparing for or participating in civil or criminal proceedings; (5) filing a complaint or incident report with law enforcement; (6) meeting with a district attorney’s office; (7) enrolling children in a new school; and/or (8) taking actions necessary to maintain or restore health, safety, or economic well-being.
NEW Expanded Safe-Time Uses (Effective February 22, 2026)
Leave may also be used for: (1) caring for a minor child or a qualifying “care recipient” with a disability who is a family member or lives in the employee’s household, and relies on the employee for medical care or daily living needs; (2) initiating, attending, or preparing for legal proceedings related to safety; and/or (3) applying for, maintaining, or restoring housing or subsistence benefits for the employee, family member, or care recipient.
Payout on Termination: Employers are not required to pay out unused leave at separation. However, if an employee is rehired within six months, previously accrued unused leave must be reinstated unless it was paid out at separation.
Confidential Information: Employers may not require employees to disclose the underlying reason for using leave. Any health or personal information obtained in connection with leave must be kept confidential and may be disclosed only with the employee’s written permission or as required by law. Such information may be considered only when evaluating a reasonable accommodation request.
Documentation: Employers may request documentation only after more than three consecutive workdays or shifts of absence. Employers must reimburse reasonable documentation costs and may not delay or deny leave while waiting for documentation.
Minimum Increments: Employers may set reasonable minimum increments for sick/safe leave use, but the increment may not exceed four hours. Smaller fixed increments (such as 30 minutes) and fixed start times may be used. Paid prenatal leave may be required to be used in increments of up to one hour per day.
Advance Notice: Employees must provide an oral or written request before using leave when possible. Employers may require up to seven days’ advance notice for foreseeable leave. For unforeseeable leave, notice may be provided as soon as practicable, and employers may not require in-person notice or paperwork before leave begins.
Discipline: Employers may discipline employees for intentional misuse of leave. Any disciplinary standards must be applied consistently and clearly set forth in the written leave policy.
Recordkeeping: Employers must maintain accurate records of leave accrual and usage for at least six years. Records may be kept electronically. Failure to maintain records may create a presumption against the employer in a dispute.
Prenatal Leave: Employers must provide a separate bank of 20 hours of paid prenatal personal leave during each 52-week period. The 52-week period begins on the first day the employee uses prenatal leave.
Additional Unpaid Sick/Safe Leave: NEW (Effective February 22, 2026): Employers must provide at least 32 hours of additional unpaid sick and safe leave available for immediate use.
Existing PTO Policies: Existing PTO policies can satisfy these requirements if they provide at least the same amount of leave, permitted uses, accrual, and carryover rights, and clearly allow leave to be used for all protected purposes without prohibited conditions. To comply, a PTO policy must specifically state that leave may be used by an employee for any of the purposes under ESSTA without any condition prohibited by ESSTA.
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Employers should review their written policies and payroll practices to ensure compliance before the February 22, 2026 effective date.
What’s Outside the Scope of this Post?
This post does not address posting or employer notice requirements under either law.