By Jill Lowell and Sebastian Chilco | Littler Mendelson P.C
Slightly one year after the New York City Council introduced a bill that would expand the city’s paid sick leave requirements to cover “safe time” leave, Mayor Bill de Blasio signed it into law on November 6, 2017.
The law, Int. 1313-A, expands the list of covered reasons for which paid sick leave can be used to include “when the employee or a family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking.” As a result, many existing provisions have been amended to address safe time use, including documentation, confidentiality and notice to employees. Additionally, the law expands the list of covered family members for whom paid sick and safe leave can be used. The law takes effect on May 5, 2018, which is 180 days after the bill becomes law.
As amended, the law allows employees to use accrued sick and safe leave when the employee or a family member is the victim of a family offense matter,1 sexual offense, stalking, or human trafficking. Leave related to “safe time” can be used for the following reasons:
- 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.
Employee Notice and Documentation Requirements
Existing notice and documentation requirements will extend to safe time absences. Reasonable notice of a foreseeable absence may be required—up to seven days before leave will begin—and notice must be provided as soon as practicable for unforeseeable absences. Employees can be required to provide written confirmation that leave was used for a covered purpose. For an absence of more than three consecutive work days, reasonable documentation that leave was used for a covered purpose can be required.
The amended law provides that the following constitutes reasonable documentation:
- Documentation signed by an employee, agent, or volunteer of a victim services organization, an attorney, a clergy member, or a medical or other professional service provider from whom the employee or a family member sought assistance;
- A police or court record; or
- A notarized letter from the employee explaining the need for leave.
As with sick leave, employers cannot require that documentation specify the details of the family offense matter, sexual offense, stalking, or human trafficking, or require as a condition of providing leave that employee disclose details relating to an employee’s or family member’s victim status. Information concerning victim status obtained solely for using leave must be treated as confidential and cannot be disclosed except by the affected employee. As amended, to disclose confidential sick or safe leave information, the law requires the employee’s written permission, but employers may consider the information in connection with a request for reasonable accommodation pursuant to New York City’s Human Rights Law.
Covered Family Members
The general definition of “family member” has been amended to include an individual related by blood and an individual whose close association with the employee is the equivalent of a family relationship, in addition to a child (of an employee, spouse or domestic partner), spouse, domestic partner, parent (of an employee, spouse or domestic partner), sibling, grandchild, or grandparent.
Employer Notice Requirements
The law already requires employers to provide written notice to employees of their rights under the law at the time of hire in English and the employee’s primary language if the New York City Department of Consumer Affairs (DCA) has created a notice in that language. After the amended law takes effect, required notices, i.e., the Notice of Employee Rights, must also include notice to employees of their right to safe leave. Additionally, on or before June 4, 2018 (e.g., within 30 days of the law’s effective date), employers must provide notice to existing employees working in New York City of their right to safe leave (if they did not previously receive such notice).
Effect on Other Laws
The law sets minimum requirements, which, as amended, apply to safe time. It does not preempt, limit, or otherwise affect the applicability of other laws, regulations, rules, requirements, policies or standards that provide for greater accrual or use of unpaid or paid time off or extend other protections to employees. Employers with New York City operations must continue complying with the city’s Human Rights Law that requires employers with four or more employees to provide reasonable accommodation to employees who are victims of domestic violence, sex offenses or stalking, and with the New York State Human Rights Law, which prohibits employers with four or more employees from discriminating against victims of domestic violence.2 Employers will also be required to comply with New York State’s Paid Family Leave Benefits Law that is effective January 1, 2018, if the employee meets eligibility requirements and the need for leave is a qualifying event under the Paid Family Leave Benefits Law. For example, if the need for leave results from a family member’s serious health condition caused by a domestic violence incident, the employee may be eligible for paid sick and safe time and/or Paid Family Leave benefits.3
For employees covered by a valid collective bargaining agreement (CBA) in effect when the amended law takes effect, the amended law will apply when the CBA terminates. Once a CBA terminates, or a new CBA is executed, the law will apply to CBA-covered employees unless the CBA expressly waives the law’s requirements and provides employees a comparable benefit in the form of paid days off. Comparable benefits must be in the form of leave, compensation, other employee benefit (e.g., vacation, personal days, sick and safe time, premium pay for Sunday and holiday work), or some combination thereof.
Employers should update their paid sick leave policies to include paid safe leave. They should also begin providing a revised Notice of Employee Rights to new hires as of the amended law’s effective date (May 5, 2018) and should maintain accurate records of distribution. On or before June 4, 2018, employers should also distribute the revised Notice of Employee Rights to all of their employees working in New York City, who did not previously receive the revised Notice, and maintain records evidencing distribution.
The law permits the DCA’s Office of Labor Standards Director to take necessary measures to implement the law, including creating rules. Given the DCA’s history of providing extensive formal and informal guidance, new rules—or at the very least revised FAQ—on the new amendments are expected. As such, employers should also monitor the New York City DCA’s and Human Rights Commission’s websites for safe-leave-related updates.
1 A “family offense matter” means the following offenses between spouses or former spouses, or between parent and child or between members of the same family or household: 1) an act or threat of an act that may constitute disorderly conduct; 2) harassment in the first or second degree; 3) aggravated harassment in the second degree; 4) sexual misconduct; 5) forcible touching; 6) sexual abuse in the second or third degree; 7) stalking in the first, second, third, or fourth degree; 8) criminal mischief; 9) menacing in the second or third degree; 10) reckless endangerment; 11) strangulation in the first or second degree; 12) criminal obstruction of breathing or blood circulation; 13) assault in the second or third degree; 14) attempted assault; 15) identity theft in the first, second, or third degree; 16) grand larceny in the third or fourth degree; and 17) coercion in the second degree.
2 For a discussion about the state law, see Lisa M. Brauner, New York Amends Its State Human Rights Law to Protect Domestic Violence Victims from Employment Discrimination, Littler Insight (Sept. 4, 2009)
3 To learn more about the New York State Paid Family Leave Benefits Law, see Stephen Fuchs and Bruce Millman, Understanding New York’s New Paid Family Leave Law, Littler Insight (May 23, 2016); Stephen Fuchs and Jill Lowell, New York Issues Final Paid Family Leave Law Regulations, Littler Insight (Aug. 9, 2017); Stephen Fuchs and Thomas Cryan Jr., New York State Issues Guidance on Tax Treatment of Paid Family Leave Contributions and Benefits, Littler ASAP (Aug. 29, 2017); Stephen Fuchs and Jill Lowell, New York Paid Family Leave Benefits Law Deadline for Employers to Apply for Approval as a Self-Insured Employer Rapidly Approaching, Littler ASAP (Sept. 12, 2017).
Compliments of Littler Mendelson P.C , a member of the EACCNY