Employers may recall our previous alert that highlighted amendments to the NYC Earned Safe and Sick Time Act, which went into effect on May 5, 2018. Less than six months later, New York City once again revised the Earned Safe and Sick Time Act Rules (Amended Rules) and the corresponding FAQs, effective Sept. 20, 2018. As a result of these changes, employers will need to modify their recently updated policies in order to ensure compliance with the new guidance.
Amended NYC Earned Safe and Sick Time Rules
While there are not many changes, a few revisions stand out as significant:
- Employers must maintain written safe and sick time policies in a "single writing." We interpret this to mean that multistate employers should not rely on a general sick time policy and a New York addendum that supplements, but must be read together with, the general policy. Instead, a New York addendum should contain the complete policy applicable to New York City employees.
- Employers must include in their safe and sick time policies a description of the confidentiality requirements of Section 20-921 of the Administrative Code. Unless the employee permits disclosure or disclosure is required by law, the provision prohibits an employer from disclosing an employee's or his or her family member's medical condition, health information, status or perceived status as a victim of family or sexual offense, or stalking or human trafficking, and requires employers to keep such information obtained in connection with utilizing safe/sick time as confidential.
- Under the Amended Rules, simply posting a written sick time policy is no longer sufficient. Employers must distribute the written safe and sick time policies upon (i) commencement of employment, (ii) within 14 days of the effective date of any changes to the policy and (iii) upon request by employees.
- The city removed a provision placing on "temporary help firms" sole responsibility for compliance with the NYC Earned Safe and Sick Time Act for temporary workers placed with other entities. As a result, companies that use temporary workers may now be deemed joint employers for purpose of the law and required to ensure compliance with respect to those workers.
Employers' Next Steps
New York City employers that recently revised their safe and sick time policies in accordance with the city's May 2018 amendments must update their policies to include a confidentiality provision as referenced above. Employers may wish to consider the following suggested language in their policy to comply with the law:
CONFIDENTIALITY AND NONDISCLOSURE. [Employer] will not require the disclosure of details relating to an employee's or his or her family member's medical condition or require the disclosure of details relating to an employee's or his or her family member's status as a victim of family offenses, sexual offenses, stalking, or human trafficking as a condition of providing safe or sick time under this policy. Health information about an employee or an employee's family member, and information concerning an employee's or his or her family member's status or perceived status as a victim of family offenses, sexual offenses stalking or human trafficking provided for the purposes of utilizing safe or sick time pursuant to this policy shall be treated as confidential and shall not be disclosed except with the written permission of the employee or as required by law.
Employers must also distribute their revised policies no later than 14 days after the policies take effect.
New York City employers that did not previously revise their safe and sick time policies are encouraged to review our previous alert and to immediately amend their policies in accordance with the law's requirements.