On May 5, 2018, an amendment went into effect expanding and renaming New York City’s Earned Sick Time Act (the “Act”). Since the Act went into effect on April 1, 2014, it has required private sector employers with 5 or more New York City-based employees to provide such employees with paid sick leave of up to 40 hours per twelve-month calendar year, and private sector employers with fewer than 5 New York City-based employees to provide such employees with the same amount of unpaid sick leave.

The Act has been renamed the Earned Safe and Sick Time Act and now requires employers to allow covered employees to accrue time off, and use accrued time off, in the same manner for “safe leave” as for sick leave. In addition, the amended Act has enlarged the definition of “family members” for whom time off can be taken.

Use of Safe Leave

In addition to use of sick leave for themselves or family members, covered employees can now use safe leave time off if the employee or a family member is the victim of a family offense matter, sexual offense, stalking, or human tracking:

• 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 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 employee’s family member, or to protect those who associate or work with the employee.

As with sick leave, employers can require reasonable prior notice of the need to use safe leave, where such need is foreseeable.

Expanded Definition of Family Member

Under the prior version of the Act, family member was defined to mean a covered employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, or the child or parent of a covered employee’s spouse or domestic partner. Family members under the amended Act, now include (i) any other individual related by blood to the covered employee, and (ii) any other individual whose close association to the covered employee is the equivalent of a family relationship.

Absences of Three or More Days

As with sick leave, if a covered employee is to be absent for more than three consecutive work days, you can require reasonable documentation that the use of safe leave is covered by the Act. Such documentation can be (i) from a victim services organization, an attorney, a member of the clergy, or a medical or other professional service provider; (ii) a copy of a police or court record; or (iii) a notarized letter from the employee explaining the need for such time. You cannot require that such documentation specify the details of the family offense matter, sexual offense, stalking, or human trafficking.

Notice Requirements

The Act requires you to give written notice to new covered employees at the commencement of their employment, on a form to be created by the New York City Department of Consumer Affairs (a current copy of which is attached). Current employees were to be notified of the Act’s new leave requirements by June 4, 2018.

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If you haven’t already done so, you should review and update your handbooks and employment policies so that they are consistent with the new requirements imposed by the Act. In addition, if you haven’t already done so, you should immediately give notice to all covered employees of their right to accrue and use both sick leave and safe leave using the current form from the New York City Department of Consumer Affairs.

For more information about this Advisory or assistance with compliance, please contact Paul Pincus at 212 588-0022 or php@orllp.legal.