In a recent blog post, we provided an overview of New York State laws providing employees with leave under certain circumstances. In addition to these state laws, New York City and Westchester County have adopted their own leave laws. The following is a brief summary of these local laws; readers are advised to refer to the full text of the laws for a complete description of their terms. This post does not address the applicability of these laws to governmental entities or to domestic workers and their employers.
New York City Earned Safe and Sick Time Act
All employers located in New York City must provide paid safe/sick time if they employ five or more employees. Employers with fewer than five employees are not required to compensate employees for safe or sick leave but must otherwise comply with the Act by giving unpaid leave. Employees are eligible for paid safe or sick leave if they are employed within New York City for more than 80 hours in a calendar year and begin accruing safe/sick time on their first day of employment, but may not use accrued paid safe/sick time until 120 days after their employment commences.
Employers may require employees to submit “reasonable notice” of the need to use paid safe/sick leave. Reasonable notice means informing the employer up to seven days before the date the employee takes leave in cases where the need for leave is foreseeable, and as soon as is practicable where the need was not foreseeable. If an employee is absent for more than three consecutive days, the employer may require reasonable documentation that the time was used for an authorized purpose.
Employers must provide employees with written notice of their right to paid safe/sick leave when employment begins. The notice must in English and the primary language spoken by the employee, and inform the employee of the right to paid safe/sick leave free from retaliation. Employers are encouraged but not required to post workplace notices about the Act.
Safe leave is leave granted to an employee to seek assistance or take other safety measures if the employee or a family member (a broadly defined term) is the victim of any act or threat of domestic violence or unwanted sexual contact, stalking, or human trafficking. Safe leave may be taken for any of the following reasons:
- Obtaining services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking.
- Participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking.
- Meeting 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.
- Filing a complaint or domestic incident report with law enforcement.
- Meeting with a district attorney’s office.
- Enrolling children in a new school.
- Taking other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.
Employees may use paid sick leave for caring for their own mental or physical illnesses, injuries, or health conditions, or for seeking medical diagnosis, treatment, or preventative medical care; for caring for a family member who needs medical diagnosis, treatment, or preventative medical care; or for caring for a child whose school or childcare provider is ordered closed because of a public health emergency. Employees may also use paid sick leave if their employer’s place of business is closed due to a public health emergency.
Employees accrue one hour of paid safe/sick time for every 30 hours of work, with a cap for usage and accrual of 40 hours per year. Employees may carry over up to 40 hours of unused paid or unpaid safe/sick leave into the next calendar year, but employers may cap the total number of hours used for paid leave at 40 hours per year. However, an employer is not required to allow for carryover of unused paid leave hours if the employer both compensates employees for any unused paid leave at the end of the year and provides employees with paid safe/sick leave on the first day of the next calendar year that either meets or exceeds the law’s requirements.
Employers generally must retain records documenting their compliance with the Act for at least three years. In addition, employers are required to keep confidential any health information about employees or their family members, as well as any information concerning an employee’s or an employee’s family member’s status or perceived status as a victim of family offenses, sexual offenses, stalking, or human trafficking, obtained under the Act unless disclosure is either permitted by the applicable employee or required by law.
For additional information, see the New York City Department of Consumer Affairs website.
New York City Temporary Changes to Work Schedules Law
All New York City employers must provide employees with up to two temporary schedule changes during a calendar year to accommodate personal events. A temporary schedule change means a limited alteration in work hours, times or locations, such as using paid time off, working remotely, swapping or shifting work hours, or using short-term unpaid leave. Employees are eligible for schedule changes if they are employed within New York City for more than 80 hours in a calendar year, and are not required to be provide a schedule change until 120 days after their employment commences.
Personal events covered by the law include the need for a caregiver to provide care to a minor child or care recipient, an employee’s need to attend a legal proceeding or hearing for subsistence benefits to which the employee, a family member, or the employee’s care recipient is a party, and any circumstance that would constitute a basis for permissible use of safe time or sick time under New York City’s Earned Safe and Sick Time Act (see above).
This law does not apply to employees who are covered by a valid collective bargaining agreement if that agreement waives the provisions of the law and addresses temporary changes to work schedules and employees who are employed by any employer whose primary business is the development, creation, or distribution of movies or television programs (with certain exceptions).
New York City Human Rights Law
Employers covered by the New York City Human Rights Law (NYCHRL) are required are required to develop and implement a written policy regarding the provision of a lactation room, to be distributed to all employees upon hiring. The policy must include a statement that employees have a right to request a lactation room, and identify a process by which employees may request a lactation room. The process must, among other things, state that the employer will provide reasonable break time for an employee to express breast milk pursuant to Section 206-c of the New York Labor Law. Employers are required to provide written notice of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions to new employees at the commencement of employment. Such notice may also be conspicuously posted at an employer’s place of business in an area accessible to employees. Model notices and policies, and resources with respect to this requirement of the NYCHRL, are available at the New York City Commission of Human Rights web site.
For the purposes of this provision of the NYCHRL, the term “employer” does not include any employer that has fewer than four persons in the employ of such employer at all times during the period beginning 12 months before the start of an unlawful discriminatory practice and continuing through the end of such unlawful discriminatory practice. For purposes of this definition, (i) natural persons working as independent contractors in furtherance of an employer’s business enterprise are counted as persons in the employ of such employer, and (ii) the employer’s parent, spouse, domestic partner or child if employed by the employer are included as in the employ of such employer.
Under the NYCHRL, employers in New York City may have to allow employees with a disability to take leave as an accommodation under certain circumstances. As this can be a complicated issue in light of Federal and State laws on reasonable accommodations, please contact us if you have any questions regarding this aspect of the NYCHRL.
Westchester County Living Wage Incentive
Under the Westchester County Living Wage Incentive, a “covered employer” is any person that (1) is a party to a service contract; or (2) provides building services in connection with a County lease or County assistance, provided that the covered employer employs at least 15 full-time equivalent employees regardless of whether those employees are covered employees or not. A “service contract” is a contract between the County and a person or his or her subcontractor whereby the County is committed to expend funds for covered services which are provided to or on behalf of the County, and which involves an expenditure of $50,000.00 or more in any 12-month period. “Covered services” are custodial, janitorial or security guard services and personal care services provided by the Westchester County Department of Social Services under the county’s Medicaid Personal Care/Home Attendant programs.
Covered employers are required to provide at least 12 compensated days leave per year to covered employees working full-time for sick leave, vacation, or personal necessity at the covered employee’s request. Paid holidays, consistent with established employer policy, may be counted toward the required 12 compensated days off. Part-time covered employees are entitled to a pro-rata equivalent of the compensated days provided to covered employees working full-time. Covered employees are eligible to use accrued days off after the first six months of employment with the covered employer as a covered employee or in accordance with the policies of the covered employer, whichever occurs first. Covered employees accrue one day of compensated leave per month of fulltime equivalent employment.
“Covered employees” are employees who perform home care or building services in connection with a service contract, county assistance, or a county lease. Employees are not considered covered employees if they are either (1) under age 18 years; (2) work in a government sponsored training program; (3) are volunteers; and/or (4) are employed as part of a County or private youth employment program.
Covered employers are required to conspicuously post on their premises, in an area where notices to employees and applications for employment are regularly posted or in an area that is accessible to all covered employees on a daily basis, two copies of this law informing employees of their rights under this law. Covered employers are also required to provide to each covered employee, in person or by mail, a copy of a written notice informing the covered employees of their rights under this law.
Westchester County Earned Sick Leave Law
The Westchester County Earned Sick Leave Law, applicable to all Westchester County employers, requires employers to provide eligible employees with at least one hour of sick leave for every 30 hours worked. An eligible employee is any person that works at least 80 hours in a calendar year within Westchester County, except for those working pursuant to a work-study program or in a work experience program established by a social services district and those compensated by a qualified scholarship.
Employers with five or more employees in Westchester County must provide their employees with up to 40 hours of paid sick leave in a year (either a calendar year or otherwise as determined by the employer, such as a year commencing on the anniversary of hiring). Paid sick time must be the same hourly rate the employee normally earns, provided that it is no less than the applicable current hourly wage, which at the time of this publication is $12.00 in Westchester County. Employers with four or fewer employees in Westchester County must provide up to 40 hours of unpaid sick leave in a year. These are minimum requirements and an employer may offer additional sick leave to its employees. Additionally, employers may require new employees wait 90 days prior to using their accrued sick time.
Employers are not required to pay employees for their earned but unused paid sick leave upon termination of employment. Additionally, while an employee may roll over his or her unused sick leave to the subsequent year, the Law does not require that employers provide more than 40 hours in a year.
Upon hiring, every employer must provide its Westchester County employees a copy of the Law and written notice of how the Law applies to that employee. Additionally, every employer must display a copy of the Law and poster in a conspicuous location (e.g., employee break room or kitchen area) in English, Spanish, and any other language deemed appropriate by Westchester County.
Westchester County Safe Time Leave
Under the Westchester County Safe Time Leave Law, which applies to all employers in Westchester County, any person employed for hire by an employer in any employment within the County for more than 90 days in a calendar year who performs work on a full-time or part-time basis may take up to 40 hours paid leave in a calendar year in order to attend or testify at civil or criminal proceedings for domestic violence or human trafficking, and to relocate to a safe location. The Law excludes work performed as a participant in a work experience program established by a social services district, pursuant to specified work study programs, or by employees compensated by or through specified scholarships.
Employees are eligible to take paid leave for the purposes of the Law once they have worked for the employer for 90 days. Employers in Westchester County must provide written notice and a copy of the Law to each employee and post signs in English and Spanish in a location easily accessible by employees. In addition, for new hires, all covered employers must provide a copy of the Law and written notice of how the Law applies to each employee at the commencement of employment.
Employers may not deny or restrain a covered employee’s valid request for safe time leave, but may request proof that the safe time leave is being used for the intended purposes of the Law. In addition, employers can neither require the employee find coverage for their position during their safe time leave absence, nor retaliate against them for exercising their rights under the Law, filing a complaint for an alleged violation of the Law, or informing other employees of such rights.
For further information or guidance on revising your policies and procedures in accordance with the above leave laws, please contact David Paseltiner at (516) 393-8223 or firstname.lastname@example.org.