New York City recently amended its rules related to the Earned Safe and Sick Time Act (ESSTA). The Act is enforced by the NYC Department of Consumer and Worker Protection (DCW). The newly amended rules provide specific guidance on prenatal leave and what is contemplated within the protections for prenatal leave.

Employees can use prenatal leave to receive health care during pregnancy or related to the pregnancy. Covered health care can include:

• Physical examinations
• Medical procedures
• Monitoring
• Testing
• Discussions with a health care provider
• End of pregnancy care
• Fertility treatment

The regulatory guidance regarding purposes for which an employee may use paid prenatal leave expressly states that “an employer may not ask an employee to specify the type of care received.”

In New York City, employers must provide up to 56 hours of paid safe and sick leave if the employer employs 100 or more employees. If an employer employs 99 employees, but no fewer than five employees, the employer must provide 40 hours of paid safe and sick leave. In its FAQ for the Act, DCW said the requirement to provide safe and sick leave applies to all employers, regardless of size or net income. The FAQ is remarkably detailed—the updated version of the agency guidance consists of 48 pages.

The FAQ is instructive in addressing a number of key issues. In addition to relatively detailed aspects regarding the application of the Act, there is an express set of questions regarding record keeping. For example, the following set of questions and answers is instructive regarding employer record requirements. A few of the most commonly overlooked provisions are highlighted.

What records must an employer keep?

Employers must keep their current and past written safe and sick leave policies.

Employers must create and maintain records—including employment, payroll, and timekeeping records—documenting their compliance with the requirements of the Law, specifically those records that show for each employee:

• Name, address, phone number, start date of employment, end date of employment (if applicable), rate of pay, and whether the employee is exempt from the overtime requirements of New York State Labor Law and related regulations.
• Hours worked each week (unless the employee is exempt from the overtime requirements of New York State Labor Law and related regulations and has a regular workweek of 40 or more hours).
• Date and time of each instance of safe and sick leave or paid prenatal leave used and the amount paid for each instance.
• Any change in the material terms of employment specific to the employee.
• Date that the Notice of Employee Rights was provided to the employee and proof that it was received by the employee.

In addition, for each pay period, the employer must maintain records for each employee that show:

• the amount of safe and sick leave accrued and used during the pay period;
• the employee’s total balance of accrued safe and sick leave; 
• the amount of accrued safe and sick leave available for use by the employee; AND
• the amount of paid prenatal leave used during the pay period and the employee's total balance of paid prenatal leave.

The NYC ESSTA is illustrative of the increasingly detailed and protected nature of many state and local regulatory programs. The programs are designed to ensure a certain protocol regarding policy statements, record keeping and disclosure. This is a trend likely to continue in state and local regulatory developments. The changes present remarkable challenges for employers in complying with various federal, state and local regulatory frameworks.