If Pain, Yes Gain – Part 139: NYC Adopts Amendments to Protected Time Off (aka Safe and Sick Time) Rules

What you need to know:

• The New York City Department of Consumer and Worker Protection (“DCWP”) passed final amended Rules relating to the Protected Time Off Law (“PTOL”) (formally known as the Earned Safe and Sick Time Act (“ESSTA”)).
• The final amended Rules go into effect on July 23, 2026, and follow the City’s significant amendments to the PTOL from February 2026.
• The final amended Rules contain several key clarifications and updates. Nonexclusive examples include: defining the term “protected time off” to have the same meaning as “safe/sick time”; incorporating the additional authorized reasons for use of protected time off; requiring immediately available unpaid protected time off hours and clarifying various related administrative obligations; expanding employers’ balance notification obligations to former employees; providing guidance to employers regarding the interplay between paid and unpaid protected time off when employees have both banks available; and clarifying the new remedies and civil penalties associated with employers’ separate paid prenatal leave obligation.

February 2026 PTOL Amendments Recap

The New York City legislature passed sweeping amendments to the PTOL (formally known as, ESSTA) which became effective February 22, 2026, as discussed here. Amendments to the related, but separate, New York City Temporary Schedule Changes Law also went into effect on February 22, 2026.

Notably, the February amendments added a requirement that employees be provided at least 32 hours of unpaid protected time off that is immediately available for use upon hire and each calendar year thereafter, in addition to employers’ existing paid protected time off and paid prenatal leave obligations. Additionally, the amendments expanded the protected reasons for use by allowing employees to use available PTOL time for: (a) situations involving a public disaster; (b) when an employee or their covered family member is a victim of workplace violence; (c) when an employee is a caregiver for a minor child or care recipient; and (d) attending or preparing for a legal proceeding related to subsistence benefits or housing. The amendments also formally codified employers’ paid prenatal leave obligations and modified certain collective bargaining provisions. In February 2026, the City rolled out amended PTOL FAQs, a revised PTOL website, a new report focused on the City’s PTOL compliance efforts, and an updated Notice of Employee Rights.

July 2026 PTOL Amended Final Rules

The DCWP issued the proposed amendments to the PTOL Rules in February 2026, opening the comment period, and held a public hearing on the proposed rules on March 2, 2026. On June 24, 2026, the DCWP adopted amended final Rules relating to protected time off available under the PTOL (the “Rules”), which become effective on July 23, 2026.  The amended final Rules provide guidance on administering the PTOL requirements and incorporate the recent statutory amendments, including rebranding ESSTA as the PTOL. Detailed below are the key highlights of the amended final Rules:[1]

1.   Removal of References to “safe/sick time” and Addition of Protected Time Off

• The amended final Rules clarify that the term “safe/sick time” in the PTOL is now defined as “protected time off” and includes both paid and unpaid protected time off.  In other words, the terms are used interchangeably and mean the same thing.
• The amended final Rules also state that the 32 hours of immediately available, unpaid protected time off can be used for the same covered reasons as paid protected time off. 

2.   Clarification of Administration of the Additional 32 hours of Immediately Available, Unpaid Protected Time Off, per Calendar Year[2]

• Where an employee seeks to take protected time off for a covered reason under the PTOL, and has both paid and unpaid protected time off available, the employer must provide the employee with paid protected time off for the absence, unless the employee specifically requests to use their available unpaid protected time off. However, and importantly, if an employee has not accrued enough paid protected time off, or has already exhausted their available paid protected time off, the employer must allow the employee to use their available unpaid protected time off for the covered absence. As a reminder, New York City employees are generally limited to using a maximum of 40 or 56 hours of paid protected time off (depending on employer size) and a maximum of 32 hours of unpaid protected time off per calendar year.[3]
• A New York City employer may fulfill its obligation to provide 32 hours of unpaid immediately available protected time off by providing some or all of this time as paid protected time off or a paid equivalent.
• Whether paid or unpaid, at least 32 hours of protected time off must be immediately available upon an employee’s first day of employment and on the first day of each calendar year thereafter. An employer’s written PTOL policy must explain this entitlement in detail.
• The amended final Rules also confirm that employers are not required to carry over any unused portion of employees’ 32 hours of unpaid protected time off into the following calendar year.
• In addition, the amended final Rules explain that when an employee separates from their employment and are rehired by the employer the same calendar year, the employer must reinstate the employee’s unused portion of unpaid protected time off. This obligation is in addition to potential reinstatement obligations regarding earned, unused paid protected time off under the PTOL.
• Further and importantly, the amended final Rules contain a provision addressing the interplay between unpaid protected time off and wage and hour requirements for exempt employees. In particular, the amended final Rules state that an employer should pay employees for unpaid protected time off when the payment is necessary to comply with other legal obligations, or to meet the criteria for an overtime exemption under state or federal law, such as the federal Fair Labor Standards Act salary basis test.

3.   Notice of Accrued, Used and Available Protected Time Off and Paid Prenatal Leave Amounts, Including for Former Employees

• As explained in the DCWP’s amended final Rules, when a New York City employee’s tenure with their employer ends, the employer must either (a) continue to provide the former employee with access to its electronic system for six  months or (b) provide the employee a written statement containing the following information for the employee’s last pay period no later than one  week following the employee’s last payday:
  1. The amount of paid protected time off accrued during the pay period;
  2. The amount of protected time off used during the pay period, differentiating between paid and unpaid protected time off;
  3. The employee’s total balance of paid protected time off;
  4. The amount of protected time off available for use by the employee, differentiating between paid and unpaid protected time off;
  5. The amount of paid prenatal leave used during the pay period; and
  6. The employee’s total balance of paid prenatal leave.
• This is a new requirement for New York City employers that has been added by the DCWP’s amended final Rules.

4.   Reasonable Documentation for Protected Time Off Usage

• Under the PTOL, where an employee seeks to use protected time off or paid prenatal leave that results in an absence of more than three consecutive work days, an employer may require reasonable documentation to confirm that the time off was used for a protected reason. The amended final Rules state that when employees use protected time off for covered absences other than sick time or safe time, any documentation that shows the reason for the amount of protected time off taken must be considered reasonable documentation and accepted by the employer.

5.   Clarification of Penalties for Failure to Allow for Paid Prenatal Leave

• The amended final Rules also contain updates on potential penalties for employers who violate the PTOL. The amendments address potential penalties when an employer fails to provide employees with the required amount of paid prenatal leave.  Specifically, if an employer fails to provide paid prenatal leave, either as a matter of policy or practice or refuses to allow the use of paid prenatal leave, each affected employee is entitled to relief as follows: (a) 20 hours of paid prenatal leave to be applied to the employee’s paid prenatal leave balance; and (b) $500 per employee per calendar year the policy or practice was in effect.

Next Steps for Employers

With the amended final Rules taking effect later this month on July 23, 2026, here are some important next steps for New York City employers to consider:

• Review existing safe and sick leave or PTOL policies and practices, and assess the interplay with the PTOL requirements, including the new unpaid time off requirement, the DCWP’s paid prenatal leave standards, and any related attendance, conduct, anti-retaliation, and discipline policies and procedures.
• Determine whether to implement new policies and practices to ensure compliance with the amended final Rules and February 2026 amendments.
• Assess whether existing offboarding practices and processes need to be adjusted in light of employers’ new balance notification obligation related to former employees.
• Train supervisory and managerial employees, as well as HR, on the PTOL and paid prenatal leave requirements.

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] The ESSTA (now PTOL) Rules have been amended multiple times in recent years. For instance, in 2023, significant amendments were made to ESSTA’s Rules, which included changes to employer size determinations, employee eligibility, notice requirements, documentation standards, payment of sick/safe time, and written ESSTA policies. Similar, in mid-2025, the ESSTA Rules were amended to incorporate paid prenatal leave requirements, some of which expand well beyond the New York State paid prenatal leave standards.

[2] The amended Rules also contain updated examples illustrating how the 32 hours of unpaid protected time off applies in practice.

[3] Under the PTOL, “calendar year” means a regular and consecutive 12 month period as determined by an employer.