NYC’s Earned Safe and Sick Time Act Effective May 5

Have You Updated Your Policies and Trained Your Managers on the Legal Requirements?

Summary
New York City’s Earned Safe and Sick Time Act (Paid Safe and Sick Leave Law) took effect on May 5, 2018.

As you may recall from our blog post when the law was impending, the Earned Safe and Sick Time Act (ESSTA) amends the Earned Sick Time Act (ESTA) by providing eligible employees with paid time off from work for circumstances resulting from the employee or a covered family member of the employee being the victim of family offense matters, sexual offenses, stalking, or human trafficking.

The “safe time leave” amendment to ESTA was enacted to protect survivors of human trafficking, sexual assault, and domestic violence, ensuring they have access to needed care and time to stabilize their lives, without fear of job loss for it.

NYC’s ESSTA covers employers with five or more employees who work more than 80 hours a calendar year in New York City, and requires them to offer paid “safe time” leave to eligible employees. Employers with one to four employees who work more than 80 hours per calendar year in New York City must provide unpaid safe leave.

Just as with sick leave, safe leave accrues at a rate of one hour of leave for every 30 hours worked, up to 40 hours per calendar year, and begins accruing on an employee’s first day of employment. Employees can begin using accrued leave 120 days after their first day of work. For those employers who do not frontload safe and sick leave on the first day of a new calendar year, employees must be permitted to carry over up to 40 hours of unused safe and sick leave from one calendar year to the new calendar year.

What has changed
ESSTA provides eligible employees with safe leave (when the employee or an employee’s family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking) for the following reasons:

  1. to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program;
  2. to participate in safety planning, temporarily or permanently relocate, or take other actions to protect the employee’s safety or that of family members;
  3. to meet with an attorney or other social service provider to obtain information and advice related to custody, visitation, matrimonial issues, orders of protection, immigration, housing, and discrimination in employment, housing, or consumer credit, and prepare for our participate in any criminal or civil proceeding;
  4. to file a domestic incident report with law enforcement or meet with a district attorney’s office;
  5. to enroll children in a new school; or
  6. to take other actions to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member.
Definition of “Family Member”

The ESSTA expands the definition of “family” for whom safe and sick leave can be used to: any individual related by blood to the employee, and any individual whose close association with the employee is the equivalent of a family relationship.[2]  Previously, under the ESTA, the term “family” was limited to children, spouses, domestic partners, siblings, grandchildren, grandparents, and the child or parent of a spouse or domestic partner.

Notice of Employee Rights

Covered employers must provide their employees with the new Notice of Employee Rights (“Notice”) that includes information about safe leave in English, and, if available on the NYC’s Department of Consumer Affairs (“DCA”) website, in the employee’s primary language. Though not required, employers may choose to post the Notice conspicuously at the employer’s place of business in an area accessible to employees. Employers must have provided the notice on the first day of an employee’s employment, or by June 4, 2018, whichever is later.

Employers must retain a copy of the signed Notice for three years.

Sick and Safe Leave Accrual

Beginning on the eligible employee’s first day of employment, the employee starts to accrue one hour of safe and sick leave for every 30 hours worked. The employee will be able to use his/her safe leave beginning May 5, 2018 or 120 days after their first day of employment, whichever is later.

Certain Employer Requirements Must Be Contained in Written Policies

DCA is charged with enforcement of PSSL and has issued rules requiring that employers opting to impose certain requirements like minimum daily increments, documentation, advance notice, front-loading time, and employee verification—among other requirements– put those requirements and verification procedures into a written policy.

Consequences of non-compliance
Just as with the ESTA, this amendment also protects employees from retaliation for exercising their rights under the law, requesting leave, and/or complaining of violations of this law.

Upon receiving a complaint, the DCA will investigate and attempt to resolve the complaint through mediation. If DCA finds that an employer has violated the law, it may grant an employee or former employee relief such as:

  • For each instance of sick time taken by an employee but unlawfully not compensated by the employer: three times the wages that should have been paid under this chapter or $250 dollars, whichever is greater;
  • For each instance of sick time requested by an employee but unlawfully denied by the employer and not taken by the employee or unlawfully conditioned upon searching for or finding a replacement worker, or for each instance an employer requires an employee to work additional hours without the mutual consent of such employer and employee make up for the original hours during which such employee is absent: $500;
  • For each instance of unlawful retaliation, not including discharge from employment: full compensation including wages and benefits lost, $500 and equitable relief; and
  • For each instance of unlawful discharge from employment: full compensation including wages and benefits lost, $2,500 and equitable relief, including reinstatement.

The employer will also be liable for a civil penalty up to $500 for the first violation, up to $750 for the second violation (if within two years of the first violation), and up to $1000 for each succeeding violation (if within two years of any previous violation).

Practical next steps/recommendations for employers
In view of this new law, covered New York City employers would be well-advised to do the following.

  • Ensure timely issuance of required Notices of Employee Rights. Provide all employees with the new Notice of Employee Rights in English and the employee’s primary language that includes information about safe leave, including accrual and use of safe and sick leave, the right to file a complaint, and the right to be free from retaliation. You can find a sample notice at the link here.  Get a signed acknowledgement of receipt from each employee and maintain the record for at least three years.
  • Update written paid sick leave policies to incorporate the Paid Safe and Sick Leave law’s new requirements and ensure those policies contain mechanisms for employees to seek leave under them. Maintain or update policies and procedures for victims of domestic violence, sex offenses and stalking to request reasonable accommodations. Employers may seek verification from employees for the need for safe leave, but must create procedures for seeking such verification.
  • Employers can find more information about the ESSTA here.
  • Train supervisors on the new legal requirements, the prohibition against retaliation, and how to handle requests for paid safe and sick leave.

Please feel free to contact our Employment Law Department if we can assist with updating your policies or conducting managers’ training on the law and handling requests for reasonable accommodation: lisa@nullperlmanandperlman.com or 212-889-0575.

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