Executive Summary: In November, the New York City Council passed a law amending the Earned Sick Time Act, changing the name to the Earned Safe and Sick Time Act (ESSTA), and allowing employees to use paid time off under ESSTA if they or their family members are victims of domestic violence and other family offenses. The changes came into effect on May 5, 2018. Employers need to immediately update their sick time policies to reflect the change and distribute the new “Notice of Employee Rights” to all their employees by June 4, 2018.
Key Changes in ESSTA:
- “Safe Time” in addition to “Sick Time”
The new law allows employees to use paid time off under the law for “safe time” in addition to sick time. If an employee or their family members are the victim of domestic violence, a sexual offense, stalking, or human trafficking, the employee can use “safe time”:
- To obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a domestic violence 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 their family members from further incidents of domestic violence, sexual offenses, stalking, or human trafficking;
- To meet with an attorney or 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 domestic violence matter, a sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, or 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, physiological, or economic health or safety of the employee or their family member, or to protect those who associate or work with the employee.
- Expanded Definition of “Family Member”
Employees can use safe/sick time not only for their own needs, but also if their family member needs care or is the victim of certain offenses. Previously, qualifying family members were limited to spouses, partners, children, parents, siblings, grandchildren and grandparents. Now, the definition of “family member” has been expanded to include “any other individual related by blood to the employee” as well as “any other individual whose close association with the employee is the equivalent of a family relationship.” With that broad definition, employees can use safe/sick time to attend to the health and safety needs of more extended family members, co-habitants, and other close associates.
- Verification of “Safe Time”
Employers can still require “reasonable documentation” if an employee uses safe/sick time for more than three consecutive workdays. For sick time uses, employers can still require the documentation be signed by a licensed health care provider. For safe time uses, employers must accept a wider range of documentation, which falls into three categories:
- documents signed by victims’ service organizations, attorneys, clergy, or medical professionals;
- police or court records;
- a notarized letter from the employee explaining the need.
An employer cannot require that the documentation specify the details of the issues giving rise to the need for safe/sick time.
- New Employee Notices Required by June 4, 2018
The “Notice of Employee Rights” issued by the NYC Department of Consumer Affairs (DCA) must be given to all employees at their time of hire. The Notice has been updated to reflect the recent changes. In addition, the law requires that all employees, even those who have previously received a Notice, receive the updated Notice by June 4, 2018.
The updated Notice is available in multiple languages at DCA’s website http://www1.nyc.gov/site/dca/about/paid-sick-leave-law.page. The notice must be given to employees in their primary language, if available on DCA’s website.
Employers’ Bottom Line: The new requirements of ESSTA require employers to immediately update their policies and distribute new notices. DCA is already heavily auditing employers for compliance. Employers should consult with attorneys to make necessary revisions.
If you have any questions regarding the new law or other labor or employment related issues, please feel free to contact the authors of this Alert, Eric Su, Office Managing Partner in the New York Office, esu@fordharrison.com, and Valerie K. Ferrier, Senior Associate in the New York Office, vferrier@fordharrison.com. You may also contact the FordHarrison attorney with whom you usually work.