Articles

Client Alert: New NYC Sick Leave Rules: What Employers Must Do Before February 22, 2026

Date: February 18, 2026
The Clock is Ticking

As we detailed in our prior Client Alert, on October 25, 2025, New York City enacted substantial amendments to the Earned Safe and Sick Time Act ("ESSTA") in the bill known as Int. 780-A. The law takes effect on February 22, 2026, just days away. The NYC Department of Consumer and Worker Protection ("DCWP") is simultaneously proposing new implementing rules, with a public hearing scheduled for March 2, 2026, and written comments due by that same date.

If your organization employs workers in New York City, your current sick leave policies are almost certainly out of compliance. Here's what you need to know now.
 

What's Changing Under the Amended Law

New 32-Hour Unpaid Leave Bank

Perhaps the most significant change: employers must now provide an additional 32 hours of unpaid safe/sick time immediately available upon hire and on the first day of each calendar year. This unpaid time does not carry over year-to-year.

This new bank effectively replaces the two guaranteed days previously required under the Temporary Schedule Change Act (TSCA). Employees may still request temporary schedule changes, but employers are no longer required to grant them (only to respond as soon as practicable).
 

Expanded Reasons for Leave

The amended law significantly broadens when employees may use safe/sick time to include:

  • Care for a minor child or "care recipient" where the employee is a caregiver
  • Attendance at legal proceedings related to subsistence benefits or housing for the employee, a family member or care recipient
  • Actions to apply for, maintain, or restore subsistence benefits or shelter
  • Care for a child whose school or childcare provider has restricted in-person operations due to a public disaster
  • Remaining indoors during a public disaster when directed by a public official
  • Situations where the employee is a victim of workplace violence
  • New definitions for "caregiver," "care recipient," "minor child," "public disaster" and "workplace violence" have been added
 

Paid Prenatal Personal Care Leave

DCWP has incorporated New York State’s paid prenatal personal care leave requirement (i.e., 20 hours of paid prenatal personal care leave during any 52-week period) into DCWP’s ESSTA rules, requiring a separate leave bank for paid prenatal personal care leave, in addition to any existing paid sick/safe leave.
 

Proposed DCWP Rules: What May Be Coming

DCWP's proposed regulations provide critical implementation guidance, including:
 
  • "Protected time off" would be the new umbrella term defined to have the same meaning as “safe/sick time” (although the proposed rules do not prohibit employers from keeping their policies referred to as safe/sick leave).
  • Guidance on which leave bank to draw from: When employees have both paid and unpaid protected time off available for a covered reason, the employer would provide paid protected time off first to cover the employee’s absence, unless the employee requests to draw from unpaid protected time instead.
  • Align the rules with statutory amendments: Incorporate the additional authorized uses of protected time off and requirement to provide immediately available hours into the existing regulatory framework.
  • Pay Statement Requirements: For each pay period, an employer must maintain, in accessible format, contemporaneous and accurate records that show not just the amount of protected time off and paid prenatal leave accrued, used, and the balance available, differentiating between paid and unpaid protected time off.
  • Penalties: The proposed rules seek to clarify the remedies and civil penalties for violations of prenatal personal care leave to reflect those from NYC’s Administrative Code rather than NY’s Labor Law and clarify the civil penalties and employee relief that DCWP can impose on employers for having a policy/practice (whether official or unofficial) of not providing or refusing to allow use of prenatal personal care leave.
 

How to Participate in the Rulemaking Process

Employers wishing to participate in the March 2, 2026 public hearing at 11 a.m. can do so by phone or videoconference or can submit written comments by March 2, 2026 at http://rules.cityofnewyork.us; email: Rulecomments@dcwp.nyc.gov. Anyone wishing to speak at the hearing must sign up in advance by emailing Rulecomments@dcwp.nyc.gov. More information about the hearing can be found here. 
 

What Employers Should Do Now

With February 22, 2026, just days away, the following time-sensitive actions are urgent:
  1. Update policies and handbooks to add the new ESSTA use cases and the 32 hours of front-loaded unpaid safe/sick time
  2. Revise pay statements/paystubs to reflect per-pay-period ESSTA accrual, usage, and available balances, distinguishing between paid and unpaid time
  3. Replace TSCA's two guaranteed days with the new unpaid ESSTA allotment; retain a process to receive and promptly respond to temporary schedule change requests
  4. Train managers and HR on documentation requirements and limits, confidentiality obligations, required reimbursement of documentation costs, anti-retaliation rules and scheduling procedures
  5. Post and distribute updated notices of employee rights for protected time off in all required languages and confirm pay-statement compliance
  6. Monitor DCWP rulemaking and FAQs as final rules are adopted. Update: DCWP issued a new Notice of Rights on February 19, 2026 (see:https://www.nyc.gov/site/dca/about/Paid-Safe-Sick-Leave-Notice-of-Employee-Rights.page) and an FAQ.

The Cost of Non-Compliance

Employers who violate the law can face significant damages and penalties. Aggrieved employees can bring suit for violation of the ESSTA in court within 2 years of the violation seeking compensatory damages, injunctive relief, declaratory relief, attorneys’ fees and costs, or they can file a complaint with the DCWP. Where there is a violation of the law, DCWP or a judge may award: (1) Treble damages for the wages that should have been paid for each time the employee took protected time off or paid prenatal leave but was not paid or $250, whichever is greater; (2) $500 for each time the employee was unlawfully denied requested protected time off or paid prenatal leave or was required to find a replacement worker or was required to work additional hours to make up for having used protected time off or paid prenatal leave; (3) Full compensation, including lost wages and benefits and interest, damages of $500 or $2,500, and appropriate equitable relief for each time the employer retaliated against the employee.
 
In addition to the monetary relief that an employer may be required to pay to employees whose rights were violated, DCWP may also impose civil penalties: (1) Up to $500 for failure to timely or fully respond to DCWP’s request for information or documents before the first scheduled appearance date ; (2) Up to $500 for each first-time violation, up to $750 for each second violation within two years of a prior violation, up to $1,000 for each subsequent violation within two years of any previous violation; and (3) Up to $50 for not providing the required Notice of Employee Rights, on a per-employee and per-instance basis.
 
The DCWP’s proposed rules seek to impose monetary relief and additional penalties. If there is a finding that an employer has a policy or practice of not providing or refusing to allow protected time off, the employer may be required to add the number of hours of protected time off that each employee should have accrued to the employee’s protected time off balance; credit each employee with 32 immediately available hours of unpaid protected time off; and in the case of an employer that has a policy or practice of not providing or refusing to allow paid prenatal leave, add 20 hours to the employee’s paid prenatal leave balance, and pay each affected employee, $500 per employee for each calendar year the policy or practice was in effect.
 

Act Now

February 22 is a deadline to beat. Contact your employment counsel immediately to review and update your policies, train your supervisors, and ensure your payroll systems are ready. The amendments are complex, the effective date is imminent and DCWP will be watching. For any questions or assistance with updating your policies and protocols, please reach out to your Whiteford Labor & Employment attorney.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.