New York, NYC Enacts Law Requiring Businesses With Five Or More Workers To Provide Paid Leave For Victims Of Domestic Violence

On November 6, 2017, the New York City Mayor Bill de Blasio signed into law a bill, Local Law 199 of 2017 (“Local Law 199” or the “new law”) which amends the New York Earned Sick Time Act, N.Y.C. Admin. §§ 20-911 – 20-924 (the “Earned Sick Time Act” or “NYCESTA”), to provide that, effective May 5, 2018, employers in Manhattan with five or more employees must allow employees who are victims of family offense matters, sexual offenses, stalking, or human trafficking to use paid sick time, now renamed “safe/sick time,” in connection with such abuse.

Under the new law, an employee who is a victim of domestic violence or the like may take paid safe time to obtain services from a domestic violence shelter or rape crisis center, to participate in safety planning or to temporarily or permanently relocate, to meet with an attorney or other social service provider to obtain information and advice, or to take other actions to ensure their own or a family member’s safety.

Local Law 199 changed the name of the New York Earned Sick Time Act to the New York Earned Sick and Safe Time Act (the “Earned Sick and Safe Time Act,” the “amended Act,” or “NYCESASTA”). In October 2017, the New York City Council Council unanimously had approved the new law by a vote of 46-0.

The Earned Sick Time Act, Before Amendment

By way of background, before the new law amended the New York Earned Sick Time Act, the Earned Sick Time Act required employers in Manhattan which employ five or more employees to give each each employee one hour of paid sick time for every 30 hours worked, up to five days per calendar year. For this author’s previous posts on the Earned Sick Time Act, see here and here.

Before Local Law 199 amended the Earned Sick Time Act, NYCESTA allowed an employee to take paid sick time for any of the following purposes, among others: (i) The employee’s mental or physical illness, injury or health condition or need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; (ii) care of a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or (iii) the employee’s need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.

The New Law’s Expansion of the Earned Sick and Safe Time Act

The new law amends the New York Earned Sick and Safe Time Act to provide that, when an employee or an employee’s family member has been the victim of a family offense matter (such as disorderly conduct or harassment), sexual offenses (such as sexual misconduct, rape, sexual abuse, or predatory sexual assault, whether actual or threatened), stalking, or human trafficking, the employee may use paid safe time for absence from work for any of the following purposes:

• to obtain 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;
• to take part in safety planning, temporarily or permanently relocate, or take 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;
• to meet with a lawyer or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil case, 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 the employee’s family member or to protect those who associate or work with the employee.

Under the new law’s amendments to the Earned Safe and Sick Time Act, employees continue to accrue paid leave at the rate of one hour of paid leave for every 30 hours worked, up to five days per calendar year, except that now that paid leave may be used not only for the above-described purposes of paid sick time, but also for the above-listed purposes of paid safe time.

As was the case with the Earned Sick Time Act, NYCESASTA prohibits businesses from firing, disciplining, demoting, suspending, reducing the hours of, or otherwise taking an adverse employment action against an employee for requesting or utilizing paid safe/sick leave.

Take-Aways for Employers

By May 5, 2018, employers in Manhattan, NY must modify their policies regarding absence because of illness to conform to the Earned Safe and Sick Time Act.

Further, employers in Manhattan, NY must provide to each new employee, either at the commencement of employment or by June 4, 2018, whichever is later, written notice of the employee’s right to paid safe/sick time under the NYCESASTA, including the accrual and use of safe and sick time, the calendar year of the employer, and the right to be free from retaliation and to bring a complaint to New York Department of Consumer Affairs (the “Department of Consumer Affairs” or the “NYCDCA”).

The written notice must be in English and in the primary language spoken by that employee, provided that the NYCDCA has made available a translation of the notice in that language. In addition, each employer in Manhattan “may,” but is not required to, conspicuously post such written notice at the employer’s place of business in an area accessible to all employees.

Further, by June 4, 2018, employers in Manhattan must provide, to those workers who had already received notice of their right to sick time under the Earned Sick Time Act, notice of their right to safe time under the Earned Safe and Sick Time Act.

The Department of Consumer Affairs is required to, but to date has not, made available on its website, for use by employers in Manhattan, NY model, updated written notices of workers’ rights under the Earned Safe and Sick Time Act. Rather, the model, written notices of workers’ rights on the NYCDCA’s website continue to advise employees only of their rights to paid sick time, and not of their rights to paid safe time. The NYCDCA’s failure so far to update the model notices available on its website (to advise employees of their rights to paid safe time) does not relieve employers of their obligations, beginning on June 4, 2018, as applicable, to distribute such updated notices.

If your company needs assistance or guidance on a labor or employment law issue and your company is located in the Manhattan, NYC area, call attorney David S. Rich at (347) 970-5550.