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.
 

Pay Statement Requirements

Each pay period, employers must show ESSTA accrued, used, and balances available, differentiating between paid and unpaid protected time off.
 

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.
  • Minimum increment rules: Employers may set a minimum increment of up to four hours per day for protected time off, or one hour per day for prenatal personal care leave, if reasonable under the circumstances.
  • 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, but also differentiate between paid and unpaid protected time off.
  • Written policy requirements: Employers must maintain protected time off and paid prenatal leave policies in a single writing and distribute them upon hire, within 14 days of the effective date of any changes, and upon request.
  • 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 and the supporting evidence.
 

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 sick/safe/prenatal leave in all required languages and confirm pay-statement compliance
  6. Monitor DCWP rulemaking and FAQs as final rules are adopted

The Cost of Non-Compliance

Employers who fail to comply face significant penalties. Under its proposed rules, if DCWP finds that an employer has an official or unofficial policy or practice of not providing or refusing to allow protected time off, including paid prenatal leave, that will trigger a remedy of an employer paying the time that was due under the law (i.e., 20 hours in the case of paid prenatal leave) and relief of $500 per employee per calendar year the policy or practice was in effect. Failure to maintain written policies and adequate records creates a rebuttable presumption of an unlawful policy or practice.
 

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.