United States: NY State Of Mind: New State And City Laws (Part 2)

This is the second in a series of blog posts concerning recent employment law developments in New York State and City:

In early November, NYC Mayor Bill de Blasio signed into law a bill expanding the City's paid sick leave law, most notably to include "safe time" for victims of domestic violence, sexual assault, and certain other offenses.

As we previously reported, NYC adopted the Earned Sick Time Act (ESTA) in April 2014. The law requires most businesses to provide employees with up to 40 hours of paid sick time per calendar year, with such time typically accruing at a rate of one hour for every 30 hours worked. In the years following the ESTA's implementation, the City has published informal guidance and administrative rules in an effort to clarify and, in some instances, expand the scope of the law.

Under the amendment signed by Mayor de Blasio – which modifies the name of the ESTA to the Earned Safe and Sick Time Act (ESSTA) – employers will now be required to permit employees to use accrued time off for absences related to "safe time." This means that an employee may take accrued time off when the employee or a family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking, and the leave is for one of the following reasons:

  • 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 participate 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 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 the employee's family member or to protect those who associate or work with the employee.

As with sick time under the ESTA, the ESSTA would allow employers to require reasonable documentation that the use of safe time was for a permitted purpose when an employee has been absent for more than three consecutive work days. According to the ESSTA, "documentation signed by an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional service provider from whom the employee or that employee's family member has sought assistance in addressing family offense matters, sex offenses, stalking, or human trafficking and their effects; a police or court record; or a notarized letter from the employee explaining the need for such time shall be considered reasonable documentation." Further, the ESSTA bars employers from requiring that such documentation specify the details of the family offense matter, sexual offense, stalking, or human trafficking.

New and Expanded Definitions

Along with expanding the permissible uses of accrued time off under the ESTA, the ESSTA also expands and adds a number of important definitions to the law. Perhaps most notably, it expands the definition of family member – as it relates to both sick and safe time – to include "any [] individual related by blood to the employee ... and any [] individual whose close association with the employee is the equivalent of a family relationship." The phrase "equivalent of a family relationship" is not defined.

Moreover, as it relates to the use of safe time, the ESSTA provides the following definitions:

  • Family offense matter: an act or threat of an act that may constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision 1 of section 130.60 of the New York penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, strangulation in the first degree, strangulation in the second degree, criminal obstruction of breathing or blood circulation, assault in the second degree, assault in the third degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in the third degree or coercion in the second degree as set forth in subdivisions 1, 2 and 3 of section 135.60 of the penal law between spouses or former spouses, or between parent and child or between members of the same family or household.
  • Human trafficking: an act or threat of an act that may constitute sex trafficking, as defined in section 230.34 of the penal law, or labor trafficking, as defined in section 135.35 and 135.36 of the penal law.
  • Sexual offense: an act or threat of an act that may constitute a violation of article 130 of the penal law.
  • Stalking: an act or threat of an act that may constitute a violation of section 120.45, 120.50, 120.55, or 120.60 of the penal law.

Notice Requirements

The ESSTA takes effect on May 5, 2018. For all employees hired on or after that date, employers will need to provide such employees with a notice of the right to safe and sick time (just as employers are currently required to provide new hires with notices concerning sick time). Additionally, by June 4, 2018, employers must provide all existing employees with a new notice concerning safe time. Sample notices are expected to be published by the City before the law's effective date.

Although the law does not take effect for several months, employers should consult with counsel now and begin reviewing their policies and procedures, to ensure a smooth transition once the ESSTA takes effect.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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