If Pain, Yes Gain – Part 136: New York City Amended Safe and Sick Time Act IN EFFECT; City Issues Updated FAQs, Revised Notice, and New Compliance Report

What You Need to Know:

• Yesterday, February 22, 2026, the amended New York City Earned Safe and Sick Time Act (“ESSTA”) went into effect as expected and previously reported. Amendments to the related, but separate, New York City Temporary Schedule Changes Law (“TSCL”) also went into effect on February 22.
• Highlights of the amendments include: (a) a new 32-hour unpaid safe and sick time requirement that is in addition to employers’ existing paid safe and sick time and paid prenatal leave obligations; and (b) expanded protected reasons for use of both paid and unpaid safe and sick time.
• Earlier this month, the City issued proposed amendments to the ESSTA Rules. The comment period on the proposed amended Rules closes one week from today – March 2, 2026. A hearing on the proposed amendments is also scheduled for March 2.
• In recent days, the City also rolled out amended ESSTA FAQs, a revised ESSTA website, a new report focused on the City’s ESSTA compliance efforts, and an updated Notice of Employee Rights.
  • Employers must distribute the updated Notice of Employee Rights to existing employees within 30 days of the amended ordinance’s effective date, i.e., by Tuesday, March 24, 2026. The updated Notice must also be provided to new hires.
• As part of these amendments, the City is relabeling its safe and sick time benefit as “protected time off.” However and importantly, despite the rebranding and broader scope of use, New York City Protected Time Off Law is not a new law. It is simply a rebranding of ESSTA.
  • In addition and notably, ESSTA (or the Protected Time Off Law) is not a paid time off mandate where employers must allow the statutory time off to be used for any reason.[1] Employers can still limit protected time off usage to reasons set forth under the Ordinance (see below).

As the Big Apple’s real-time weather on Sunday, February 22, 2026, turned from flurries to full blown blizzard conditions, a flurry of ESSTA activity greeted employers as they awoke Monday morning. This included: (a) the amended ESSTA, also now known as the City’s Protected Time Off Law (“PTOL”),[2] was now in effect (February 22 was the effective date), (b) on February 20, Mayor Zohran Mamdani declared at a news conference the City’s enhanced and expanded plans to enforce ESSTA, aka the PTOL, (c) the City correspondingly issued a February 2026 report titled “Benchmarking for Evaluating Compliance with NYC’s Protected Time Off Law,” (d) amended PTOL FAQs, and (e) a revised PTOL Notice of Employee Rights. And, in one week (i.e., March 2, 2026), (f) the comment period on the City’s proposed amendments to the PTOL Rules closes, paving the way for the eventual release of final amended PTOL Rules.

For employers who have been living through ESSTA’s various iterations for the last approximately 12 years, a major avalanche of amendments and updates should come as no surprise. As we reported, the ESSTA Ordinance, Rules, and related administrative guidance have each undergone multiple updates since the ordinance went into effect in April 2014. In fact, the City’s push to refer to the mandate as PTOL rather than ESSTA will mark the second name change in the ordinance’s history – before May 2018, the ordinance was known as ESTA or the Earned Sick Time Act.

Here are highlights and key takeaways from the above recent ESSTA – we mean PTOL – activity.

• PTOL = ESSTA: As noted above, but worth reiterating, the Protected Time Off Law (or PTOL) is not a new mandate. The PTOL is the same as the City’s ESSTA.
• Unpaid Time Off Allotment:
  • Amount: All employers, regardless of size or net income, must provide employees with an additional 32 hours of unpaid safe and sick time beyond the paid safe and sick time and paid prenatal leave already available.
  • When Unpaid Time Must be Made Available: While unclear from the amended Ordinance and proposed amended Rules, the updated FAQs indicate in several areas that the new 32-hour unpaid allotment must be provided to existing employees as of February 22, 2026 and upon hire to any employees hired thereafter. The 32 unpaid hours must be made immediately available for use. Importantly, the FAQs further note that the 32 unpaid hours must be provided on February 22, 2026 and that another set of 32 unpaid hours must be provided and made immediately available on the first day of the employer’s “calendar year.”
  • No Carryover: Unused unpaid safe and sick time will not carry over into the following benefit year. 
  • Reasons for Use: Unpaid safe and sick time can be used for the same covered reasons for use as paid safe and sick time, including all new reasons per the February 22 amendments. See below.
  • Interplay Between Paid and Unpaid Time: Consistent with the amended Ordinance, the updated FAQs reiterate that if an employee has both paid and unpaid protected time off available, the employer should apply the paid benefit to the employee’s absence unless the employee specifies that they want to draw from the unpaid bank first.
  • Paid Time Can be Used for Compliance: Both the proposed amended Rules and the updated FAQs note that employers can comply with the new 32-hour unpaid mandate by providing at least 32 additional hours of paid time off that meets the requirements of the amended Ordinance, forthcoming final amended Rules, and related administrative guidance.
• Expanded Reasons for Use:
  • New Reasons for Use: The amended Ordinance added the following as covered reasons for use for both paid and unpaid protected time off (with the bold font indicating the specific updates as compared to ESSTA prior to the February 22, 2026 amendments):
    • Closure of the employee’s place of business by order of a public official due to a public health emergency or a public disaster, which is defined to include events such as a fire, explosion, terrorist attack, severe weather conditions, or other catastrophe that is declared a public emergency or disaster by the U.S. President, New York Governor, or New York City Mayor;
    • to care for a child whose school or care provider has restricted in-person operations or closed due to a public disaster (see definition above) or public health emergency;
    • where a public official directs people to remain indoors or avoid travel during a public disaster and the direction results in the employee being unable to report to their worksite;
    • where an employee or covered family member has been the victim of workplace violence, which is defined as “any act or threat of violence against an employee that occurs in a place of employment”;
    • absences when the employee acts as a caregiver to a minor child or care recipient; and
    • certain absences involving obtaining or legal proceedings related to subsistence benefits or housing for the employee, their covered family member, or their care recipient.
  • Interplay with TSCL: Importantly, the final two bullet points on the above list were only covered reasons under the TSCL prior to the February 22, 2026 amendments. For more information on the amended TSCL, see Seyfarth’s prior alert.
• School Holidays: In addition and notably, the updated FAQs state that, per recent amendments, employees can use available paid or unpaid protected time off to care for a child “on school holidays or due to unexpected issues like day care closures or babysitter cancellations.”
• Public Disaster: In terms of the new “public disaster” covered reason for use, the updated FAQs note that “employees can use protected time off to stay home during a severe weather event, such as a snowstorm or hurricane, 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.” Somewhat ironically, the PTOL’s amended reasons for use became effective on February 22, 2026, just as a blizzard shut down much of the City. Employers should be aware that employees now have an immediate entitlement to use available paid and unpaid protected time off when severe weather or other “public disasters” trigger government directives to stay home or force workplace or school closures.
• Bereavement: While the PTOL does not explicitly provide bereavement leave, the FAQs suggest that employees may still be able to use protected time off in certain bereavement‑related circumstances. For instance, the FAQs note that protected time off may apply when an employee needs time to care for a dying family member, manage their own anxiety or depression after a loss, or attend a funeral in order to care for a family member with a mental or physical health condition.
• Written Policy Requirement:
  • As has been the case for many years, New York City employers are required to maintain detailed safe and sick time written policies to comply with the PTOL’s written policy mandate. The proposed amended Rules and recently updated FAQs expressly state that employers’ written policies must contain information on the amount of unpaid protected time off provided to employees, as well as corresponding conditions that apply to this benefit.
  • Consistent with previous requirements, employers must distribute their written policy used for PTOL compliance to employees through a method that reasonably ensures personal receipt. The policy must be provided at the start of employment, upon employee request, and within 14 days of the effective date of any changes to the policy.
• Updated Model Notice of Employee Rights:
  • As noted above, the City has issued an updated Notice of Employee Rights under the PTOL. The Notice is currently available in English, with translated versions expected from the City in the coming days.
  • Employers must distribute the updated Notice of Employee Rights to existing employees within 30 days of the amended Ordinance’s effective date, i.e., by Tuesday, March 24, 2026. The updated Notice must also be provided to new hires at the start of their employment. The Notice must be provided to employees through a method that reasonably ensures personal receipt.
  • The amended Notice also must be posted in a conspicuous and accessible location in the workplace.
• NYC’s PTOL Compliance Evaluation Report:
  • The PTOL is enforced by the City’s Department of Consumer and Worker Protection (“DCWP”). The DCWP’s enforcement of PTOL is proactive and, in more recent years, has been expanding.
  • Earlier this month, the City issued a report titled “Benchmarking for Evaluating Compliance with NYC’s Protected Time Off Law.” Per the report, the City’s enhanced assessment of NYC employer’s PTOL compliance is based on the City’s “new data-driven approach that analyzes rates of paid sick leave use in employer records to identify possible violations.”
  • The City’s analysis examined when low use of sick time is “substantial evidence” of an employer’s PTOL noncompliance. To reach a conclusion, the City compared NYC employers’ employees paid sick time usage rates against national sick time usage data.[3] Significantly, where the City identifies low percentage of employee use, the City will deem it reasonable to conclude that the employer “has an official or unofficial policy or practice of not providing or refusing to allow the use of protected time off,” and thus has violated the PTOL. The City will leverage this data to inform PTOL investigations and enforcement actions, including where appropriate, on behalf of all impacted employees.
  • The City’s report reminds employers that failing to provide compliance paid – and now unpaid – safe and sick time can result in a $500 penalty owed to each affected employee, as well as a corresponding $500 per person owed as a civil penalty to the City.

Next Steps for Employers

 With the amended ESSTA, aka the PTOL, now in effect as of February 22, 2026, here are some next steps for employers to consider:

• Review existing safe and sick leave or PTO policies and practices, and assess the interplay with the PTOL requirements, including the new unpaid time off requirement, the City’s paid prenatal leave standards, and any related attendance, conduct, anti-retaliation, and discipline policies and practices.
• Determine whether to implement new policies and practices to ensure compliance with the amendments.
• Train supervisory and managerial employees, as well as HR, on the amended PTOL and TSCL requirements.
• Provide the updated ESSTA / PTOL model notice to existing employees and new hires.
• Track additional potential developments, including forthcoming amended final PTOL Rules.
• Audit company payroll and other records reflecting time off usage to determine employee usage rates and compare them to expected industry benchmarks.
• If inconsistencies in time off usage are found, conduct further analysis of the company’s policies and practices to determine if any adjustments may be needed.

With the paid leave landscape continuing to expand and grow in complexity, we encourage companies to reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with these laws and paid leave requirements more generally. To stay up to date on paid leave developments, please click here to sign up for Seyfarth’s Paid Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to paidleave@seyfarth.com.

 

[1] Examples of jurisdictions that currently maintain a mandate where employers must allow employees to use available time off for any reason include Illinois (including multiple localities, such as Chicago and Cook County), Maine, and Nevada.

[2] The City’s February 2026 amended PTOL FAQs state, “The Protected Time Off Law is also called the Earned Safe and Sick Time Act” and that “‘protected time off’ is also known as safe and sick leave.”

[3] The report acknowledges that it involves several data limitations and is based on certain assumptions. For instance, the federal data is based on responses to the National Health Interview Survey (“NHIS”) conducted by the U.S. Centers for Disease Control and Prevention (“CDC”). However, the City’s report indicates that, because the CDC survey focuses on a limited scope of sick time usage, the DCWP’s “analysis is limited to the leave employees reported using for their own illness, injury, or disability.” Meanwhile, the PTOL allows employee usage for a much wider scope of absences, as indicated above.