NYC Employers: Are You Ready for a Protected Time Off Law (ESSTA) Enforcement Blitz?

New York City employers are facing significant new compliance obligations with the newly effective amendments to the Earned Safe and Sick Time Act (ESSTA) now mandating 32 hours of unpaid leave in addition to existing paid leave entitlements, as explained in detail by our colleagues here.

The Law Changed, the Rules are Changing…

To keep things interesting, the city again rebranded ESSTA as the “Protected Time Off (PTO) Law” (though “ESSTA” is an acronym of the ordinance’s formal title, city guidance had, until recently, referred to it as the Paid Safe and Sick Leave Law; we are sticking with ESSTA for consistency’s sake). The city also released new guidance just a few days before the changes to the law took effect and proposed rules discussed at a public hearing a week and a day after the law took effect.

As was the case, even prior to this most recent round of ESSTA amendments, the guidance materials provide significantly more detail than the proposed rules. Even though the guidance materials are not binding, they likely provide a good indication of how the New York City Department of Consumer and Worker Protection (DCWP) will interpret and enforce ESSTA’s requirements going forward.

An “Enforcement Blitz” has Been Launched

On Friday, February 20, 2026, New York City Mayor Zohran Mandami announced that the DCWP “launched an enforcement blitz” by sending letters to more than 56,000 employers across the city. A press release hailing a “new data-driven enforcement strategy” emphasized that violating the law will subject employers to civil penalties ranging from $250 to $2,500 per employee, in addition to damages such as back pay.

The new “data-driven enforcement strategy” is based on a new DCWP publication, Benchmarks for Evaluating Compliance with NYC’s Protected Time Off Law. This report describes a study the agency conducted, aiming to define metrics for evaluating “low use of paid sick leave” across various occupations and industries for the purpose of serving as “substantial evidence of an employer’s noncompliance with the law.” (We read it, so you don’t have to…)

To develop these metrics, the DCWP analyzed data gathered by a 2023 Centers for Disease Control study on questions concerning access to paid sick leave and missed work. That study shows that, across demographics, 46 to 63% of employees who had access to paid sick leave used it.

Based on this study, the DCWP is making the assumption that employers whose employees use sick leave at rates below those identified in the study are “likely violating the law.”  Based on these conclusions, the city’s new enforcement strategy will:

• Evaluate whether an employer offers a compliant protected time off benefit by calculating employees’ paid sick leave usage rates from payroll records for the period under investigation and comparing these rates to industry average sick leave usage rates;
• Seek other evidence that employees had problems accessing protected time off; and;
• If there are low actual usage rates compared to expected usage rates, and DCWP’s investigation uncovers other evidence that employees had problems accessing protected time off, DCWP will charge the employer with maintaining an official or unofficial policy or practice of not providing or refusing to allow the use of protected time off.

Strategies to Avoid Violations

DCWP’s report points out common ESSTA violations that, according to DCWP, “can lead to low use rates,” and could lead DCWP to take enforcement action on behalf of all affected employees. The report also provides recommendations to avoid and correct such violations. Here’s a recap of that advice:

• If you don’t have a protected time off (PTO) policy yet, now is the time to craft it – in writing. Virtually all employers in NYC must provide PTO (P standing for protected – not necessarily paid).
• Even if you already have a PTO policy, check it for compliance with new obligations. You also need to notify your employees of their rights to PTO: the city’s official notice must be posted and delivered to all employees.
• Ensure your administrative processes and protocols are aligned with ESSTA’s requirements. NYC employers must administer their PTO benefits with accuracy and accountability. Informality won’t cut it, so it is imperative to put in place protocols and procedures to ensure that PTO is accurately recorded and reported to payroll, that any advance notice and documentation requirements are being properly implemented, and that employees and supervisors are aware of these protocols and procedures.

• No dice for “no call, no show” rules? The threat of discipline for last minute or unreported absences for protected time off reasons is generally prohibited, so absence control policies need to be reviewed to ensure they include appropriate provisions to ensure compliance with ESSTA.

The DCWP accepted comments on the proposed rules through March 2, 2026, and some comments have been publicly posted for your reading pleasure. We will monitor and report back any further updates to the rules or news of enforcement activities.

Staff Attorney Elizabeth A. Ledkovsky contributed to this post.