As most readers will no doubt recall, in January 2014 New York City joined the growing list of cities and states with paid sick leave laws when the New York City Earned Sick Time Act (the “Act”) went into effect. In the nearly four years that have passed since the Act became law, it has been amended numerous times. The most recent of these amendments, signed into law by Mayor Bill de Blasio on November 6, 2017, expands the list of permissible uses for sick time under the Act.
Specifically, employees may now take time off to attend to situations “when the employee or a family member has been the victim of a family offense matter, sexual offense, stalking or human trafficking,” or what the Act now refers to as “safe time.”
“No New Yorker should ever have to decide between their safety and a paycheck,” de Blasio said in a statement issued by his office. “This new law will make it easier for survivors to get the care they need without jeopardizing their livelihood.”
As a result of this latest amendment, the Act is now known as the New York City Earned Sick and Safe Time Act. Given the complexity of this law, and given the numerous changes that have been made to it since its debut in 2013, besides discussing the recent addition of safe time to the Act, this article will also provide an overview of the Act’s current provisions and requirements.
This NYC-only law should not be confused with New York’s Paid Family Leave Benefits Law, which I wrote about in July, and which will be going into effect on January 1, 2018. That state-wide law will provide employees with paid time off so that the employee may bond with a newly born, adopted or fostered child; care for a family member with a serious health condition; or assist loved ones when a family member is deployed abroad on active military duty. Employers need to be prepared to meet the requirements of this new law as well.
Safe Time Added to Cover Victims of Domestic Violence and Other Criminal Offenses
The latest change to the Act permits employees to use sick/safe leave they have accrued for the following stated purposes:
- To obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program;
- To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or family member;
- To meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in, any criminal or civil proceeding, including but not limited to matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit;
- To file a complaint or domestic incident report with law enforcement;
- To meet with a district attorney’s office;
- To enroll children in a new school; or
- To take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or family member or to protect those who associate or work with the employee.
Additionally, the already-broad definition of “family member” (which currently includes an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, or the child or parent of an employee’s spouse or domestic partner) is being expanded to include “any other individual related by blood to the employee; and any other individual whose close association with the employee is the equivalent of a family relationship.”
Note that the wording of the aforementioned amendments to the law are exceptionally broad, and that overbreadth may cause problems for employers. For example, an employee might argue that taking actions necessary to maintain one’s psychological health includes taking a mental health day and going to the movies or playing a round of golf. If his or her employer disagrees, and the NYC Department of Consumer Affairs (which is responsible for enforcing the Act) sides with the employee, the employer may be subject to penalties. Fortunately for employers, even with the latest amendments, at this time employees do not have the right to bring a private lawsuit under the Act, although it’s only a matter of time before the Act is amended again to include such a right.
The amendments to the Act go into effect on May 5, 2018, and employers have until June 4, 2018 to both notify employees of their right to use safe time, and update their policies.
Overview of the Act as Amended
The following is a summary of the Act’s major provisions to date, inclusive of the impending amendments:
- Covered Employees. The Act covers full-time and part-time private sector employees who work more than 80 hours in a calendar year. Independent contractors are excluded.
- Accrual of Leave. As it did before the latest amendments, sick leave accrues at a rate of 1 hour for every 30 hours worked, up to a maximum of 40 hours per calendar year. Up to 40 hours may be carried over into the next calendar year, though there is no requirement that an employee be allowed to use more than 40 hours of paid sick time in a calendar year, even if he or she has accrued more. Thus, for example, if an employee accrues 40 hours of sick time by working 1200 hours her first year, and part-way into her second year she works 240 hours (thereby earning 8 more hours) before suffering a lengthy illness, she is still only entitled to use 40 hours, even though she has 48 “in the bank.”
- Use of Leave. Employees may use their leave (a) to attend to their own physical or mental illness, or to obtain preventative medical care; (b) to care for or obtain medical treatment for a spouse, domestic partner, child, parent or in-law; (c) due to public health emergencies that result in the closure of a place of business, school or child care provider; and (d) to address “safe time” issues arising from domestic violence matters, sexual offenses, stalking or human trafficking as outlined above. The employer may establish minimum increments of usage of up to 4 hours. Thus, for example, you can require that an employee use a 4-hour block of sick time for a doctor’s appointment, or an 8-hour block if she’s out sick for a day, but you don’t have to let an employee come in a half hour late day after day simply because she claims she’s not feeling well. Employees who have accrued sick time may be required to wait 120 days after starting work for the company before being permitted to use their sick time. Leave covered by the Act can run concurrently with leave covered by the Family Medical Leave Act.
- Misuse of Leave. It is important to keep in mind that the time employees accrue under the Act is exclusively for use in attending to illness or “safe time” issues affecting the employee or a family member. It is not personal or vacation time, and employees may be disciplined if they use the time for other purposes, such as to extend vacations or holidays, or to avoid work assignments the employee would rather not handle.
- Notice. Reasonable advance notice of up to 7 days may be required where the need for taking leave is foreseeable, and an employer may require documentation confirming that time was used for purposes covered by the Act if an absence is for more than 3 consecutive work days. An employer cannot, however, request details regarding the illness or offense as a condition of granting leave.
- Loss of Leave Upon Separation. Accrued sick leave need not be paid if an employee leaves voluntarily or involuntarily. Unless your company has a policy of paying accrued sick leave upon separation, employers would be wise to adopt an affirmative non-payment policy to avoid uncertainty.
- Record Keeping and Notice Requirements. Employees must be notified in writing of their rights under the Act at their time of hire. The Department of Consumer Affairs presently offers model notices in both English and 25 additional languages. Notices should also be posted in the workplace. For existing employees, employers must inform them of their right to safe leave no later than June 4, 2018. Records concerning the usage of sick leave should be maintained for a minimum of three years.
As is mentioned above, the foregoing is only an overview of the Act’s key provisions. Given the complexity of this law and the fact that it has been revised multiple times, I would urge all employers located within the City to review their current policies with their counsel as soon as possible. Specifically, you must ensure (a) that your company’s policies are up-to-date and cover all pre-November 2017 revisions, (b) revise the policies to include safe leave, (c) revise the Notice of Employee Rights distributed to new hires as of the May 5, 2018 effective date, and (d) issue the revised Notice to existing employees by June 4, 2018. While you’re at it, don’t forget to go over New York’s Paid Family Leave Benefits Law with your attorney, and make sure you are ready when it goes into effect on New Year’s Day.
Roberta C. Pike, Esq., Kenneth R. Tuch, Esq. and Laurence I. Cohen, Esq. are partners with Pike, Tuch & Cohen, LLP, with offices located at 1921 Bellmore Avenue, Bellmore, New York 11710. The firm specializes in commercial and employment litigation, including misclassification, wage and hour, employment practices, franchising and business practice matters, and transactional matters. The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.