New York City Releases Final Rule Interpreting Amendments to the NYC Earned Safe and Sick Time Act

On June 23, 2026, the New York City Department of Consumer and Worker Protection (DCWP) quietly adopted its final rule regulating the amended NYC Earned Safe and Sick Time Act, or “ESSTA” (also called in NYC written guidance the “New York City Protected Time Off Law”). The final rule largely leaves intact the regulatory scheme set forth in the proposed rule issued on January 22, 2026, but clarifies certain issues raised by commenters and adds additional requirements. The final rule takes effect on July 23, 2026.

Features of the Proposed Rule

In 2025, the City adopted significant amendments to the Earned Safe and Sick Time Act that added, among other things, a requirement that employers provide all employees with 32 hours of unpaid safe and sick leave at the time of hire and annually, and added new covered uses for safe and sick time. The DCWP then issued updated Frequently Asked Questions, an updated Mandatory Notice of Employee Rights, and proposed rule, before the amendments took effect on February 22, 2026. The FAQs and proposed rule answered several important questions regarding interpretation of the amendments to the ordinance, including:

• Confirming that part-time employees and mid-year hires must be provided the full 32 hours of unpaid sick leave upon hire and annually – not a pro-rata share. 
• Confirming that employers may grant additional paid safe and sick leave above and beyond minimum statutory requirements in lieu of providing unpaid sick leave as long as at least 32 hours of such paid leave are available on the employee’s first day of employment and on the first day of each calendar year (which is defined as a regular and consecutive 12-month period, as determined by an employer, for the purposes of safe and sick leave administration).
• Confirming that employees can use paid and unpaid safe and sick leave to care for a minor child or care recipient during school holidays, day care closures, and babysitter cancellations. 
• Confirming that an employer may impose the same minimum required increments for unpaid safe and sick leave that it may impose for paid safe and sick leave – a maximum, initial four-hour increment for use of leave, provided it is reasonable under the circumstances, and a maximum of 30-minute or smaller increments thereafter. 

Changes in the Final Rule

The final rule largely adopts the regulatory framework of the proposed rule without material changes to the core provisions in the DCWP’s draft rule. Enforcement, penalty structure, accrual requirements, and the leave entitlement framework remain unchanged and consistent with the DCWP’s written guidance. The final rule, however, also introduces a limited set of targeted revisions concentrated in two areas: (1) post-employment access to safe and sick leave information, and (2) administration of the 32-hour immediately available unpaid leave requirement, including addressing wage-and-hour law considerations when applying this entitlement and the treatment of unpaid safe and sick leave upon rehire. It also addresses the DCWP’s position on how employers may use paid safe and sick leave to satisfy unpaid safe and sick leave requirements, and how unpaid safe and sick leave should be applied to employees exempt from overtime requirements.

New Post-Employment Disclosure Obligation

The final rule adds a new provision stating: 

When the employee’s tenure ends, the employer must either continue to provide the employee with access to the employer’s electronic system for six months, or alternatively, provide the employee with a written statement containing the content required by [regulations requiring employers to create and maintain records demonstrating compliance with the law] for the employee’s last pay period no later than one week following the employee’s last payday date.

Accordingly, the new rule imposes a new, affirmative reporting obligation on employers that exclusively use electronic systems for safe and sick leave information to now provide employees with post-employment access to safe and sick leave records or a written statement reflecting sick and safe leave information at the time separation required to be on wage statements.

Employers Must Reinstate Unused, Unpaid Safe and Sick Time for Employees Rehired Within the Same Calendar Year

Another significant point in the final rule that was not set forth in the proposed rule provides that when an employee is separated from employment and rehired within the same calendar year, the employer must reinstate the employee’s unused portion of unpaid safe and sick leave, in addition to reinstating accrued, unused paid safe and sick leave if otherwise required by the ESSTA.

Immediately Available 32 Hours of Safe and Sick Leave May Be Paid or Unpaid, But Does Not Affect Other ESSTA Requirements

While the proposed rule explained that an employer may, if it chooses to, fulfill its obligation to provide 32 hours of unpaid safe and sick leave immediately upon hire and at the beginning of the calendar year by providing an equivalent amount of paid leave, the final rule clarifies that an employer may do so by providing “some or all” of the 32 hours as paid leave. Further, the final rule makes it clear that providing any unpaid safe and sick leave as paid leave does not affect an employer’s obligation to provide paid safe and sick leave pursuant to the other requirements of the ESSTA (typically 40 or 56 hours of paid safe and sick time, depending on the size of the employer). In other words, at least 32 hours of safe and sick leave, whether paid or unpaid, must be made immediately available on an employee’s first day of employment and on the first day of each calendar year, and an employee may also be eligible for up to 40 or 56 hours of paid safe and sick time in addition to the aforementioned 32 hours. 

“Unpaid” Safe and Sick Leave & Exempt Executive, Administrative, and Professional Employees 

Responding to concerns raised by commenters about how unpaid safe and sick leave may be used by certain overtime-exempt employees, the final rule states that employers, to comply with other laws (e.g., wage & hour), should “pay” these overtime-exempt employees when they use “unpaid” safe and sick leave. At a minimum, this suggests that exempt employees should ostensibly be paid for “unpaid sick time” for a partial-day absence when a salaried, exempt employee works part of the workday. 

New York City employers should again review their implementation plans and employee-facing policies and consult with counsel to ensure that their policies comply with the DCWP’s final rule regulating protected time off under the ESSTA.