United States: No Safe Landing For Westchester County, NY Employers—County Enacts Standalone Paid Safe Leave Law

Seyfarth Synopsis: Earlier this month, and only weeks after its new Earned Sick Leave Law ("ESLL") took effect, Westchester County, NY enacted the Safe Leave Time Law ("SLTL"). Effective approximately October 30, 2019, the SLTL requires employers to provide all eligible employees with 40 hours of paid leave that can be used for certain reasons relating to domestic violence or human trafficking. The SLTL's 40 hours of paid leave will be in addition to any sick leave provided by the ESLL.

Westchester County was first infected with the nation's paid sick leave bug late last year, when it became the second New York State locality and first county to pass a mandatory paid sick leave ordinance. That mandate, known as the Earned Sick Leave Law ("ESLL"), went into effect on April 10, 2019. As noted in our prior alerts here and here, the ESLL allows eligible employees to use up to a maximum of 40 hours of earned sick leave per year.1 In addition and unlike the NYC Earned Safe and Sick Time Act ("ESSTA"), New Jersey Earned Sick Leave Law, and many other existing paid sick leave laws and ordinances, the ESLL contains no "safe time" reason for use.

Despite the ESLL's silence, paid "safe time" will be coming to Westchester County later this year. On May 3, 2019 and following unanimous passage by the County Board of Legislators, County Executive George Latimer signed the Safe Leave Time Law ("SLTL"). The SLTL goes into effect 180 days after its adoption, or approximately October 30, 2019. Notably, instead of amending the ESLL to include "safe time" among the reasons for which eligible employees can use their existing paid sick leave benefit, the County has introduced the SLTL as an additional as opposed to complimentary paid leave mandate.

Here are some of the SLTL's highlights.2

  • Obligation to Provide Paid Safe Leave: Unlike the ESLL, which as noted in footnote 1 distinguishes between small and large covered employers and only requires the latter to provide paid sick leave, the SLTL requires all covered employers to provide paid safe leave.
  • Covered Employer: "Employer" is broadly defined to include any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service.
  • Employee Eligibility: The SLTL also broadly defines "Employee" to mean "any person employed for hire by an employer in any employment within Westchester County for more than 90 days in a calendar year who performs work on a full-time or part-time basis."
  • Amount of Safe Leave and Relation to ESLL: Unlike existing paid sick leave laws and ordinances, the SLTL does not contain accrual or carryover provisions. Instead, all eligible employees are entitled to take up to 40 hours of paid leave for covered reasons per year.3 The SLTL is clear that such leave "shall be in addition to sick leave" required by the ESLL.
  • Increments of Use: The SLTL vaguely states that safe leave can be used in "full days and/or increments." Through administrative guidance or regulations, we suspect that the County will clarify whether employers can impose a minimum usage increment in the coming months.
  • Reasons for Use: Safe leave can be used by "[e]mployees who are victims of domestic violence or victims of human trafficking . . . in order to: attend/testify in criminal and/or civil court proceedings relating to domestic violence or human trafficking and/or to move to a safe location." .
    • Note on Family Members: The SLTL appears to limit employees' use of paid safe leave to their own instances of domestic violence or human trafficking and not to instances of certain "family members." This would deviate from "safe time" provided under many existing paid sick leave laws, including the New York City ESSTA. The County may provide additional clarity on this point in the coming months.
  • Notice to Employer: The SLTL's notice provisions mirror the ESLL in the following ways: (1) the SLTL generally states that paid safe leave shall be provided upon an employee's request; (2) a request for paid safe leave may be made orally, in writing, electronically, or by any other means acceptable to the employer; and (3) the SLTL contemplates that where an employee's need to use safe leave is foreseeable, the employee must make a good faith attempt to provide advanced notice to the employer and make reasonable efforts to schedule the leave in a way that does not unduly disrupt the employer's operations. Also like the ESLL, the SLTL lacks language regarding notice standards for unforeseeable absences.
  • Documentation: Unlike the ESLL,4 the SLTL does not provide a certain amount of time that an employer must wait before it can request "reasonable documentation" that paid safe leave was used for a permissible purpose. Instead, the SLTL merely notes that employers may require such documentation of employees, and that employees may provide any one of the following to satisfy the requirement: (1) a court appearance ticket or subpoena; (2) a copy of a police report; (3) an affidavit from an attorney involved in the court proceeding relating to the issue of domestic violence and/or human trafficking; and (4) an affidavit from an authorized person from a reputable organization known to provide assistance to victims of domestic violence and victims of human trafficking.5
  • Retaliation: The SLTL's retaliation provisions mirror those of the ESLL. Among other things, the SLTL prohibits employers from (1) interfering with or restraining an employee's exercise or attempt to exercise SLTL rights, (2) counting paid safe leave as an absence that may lead to adverse employment action, and (3) retaliating or discriminating against an employee for requesting to use or using paid safe leave, filing a complaint, or informing other employees of their SLTL rights.
  • Notice, Posting, and Recordkeeping: Notably, unlike the ESLL, the SLTL does not contain recordkeeping provisions. In line with the ESLL, however, the SLTL's employer notice and posting obligations include: (1) providing employees with both a copy of the SLTL and written notice of how the SLTL applies to the employee at the commencement of the employee's employment or within 90 days of the SLTL's effective date, whichever is later; and (2) displaying both a copy of the SLTL and a poster in English, Spanish, and any other language deemed appropriate by the County in a conspicuous location accessible to employees.
    • Note: It is likely that the County will release both a model safe leave notice and poster in the coming months. Our prior alert noted uncertainty as to whether the ESLL notice and poster would be the same document as the County had only released a model notice during the initial days the ESLL was in effect. The County has since released a model sick leave poster as well.
  • Reverse Preemption: As does the ESLL, the SLTL provides that it shall be null and void on the effective date of any future statewide or federal legislation incorporating the same or substantially similar provisions as those contained in the SLTL.

Employers should take steps now to comply with the SLTL before its approximate October 30, 2019 effective date. Here are some steps to consider:

  • Review existing sick and safe leave policies and either implement new policies or revise existing policies to satisfy both the SLTL and ESLL;
  • Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the both the SLTL and ESLL;
  • Monitor the Westchester County Board of Legislators' and County Executive's websites for information on the SLTL, including a model poster and notice; and
  • Train supervisory and managerial employees, as well as HR, on the new requirements.

We will continue to monitor and provide updates on Westchester County paid safe leave and paid sick leave developments as the SLTL effective date approaches and on any subsequent changes.

Footnotes

[1] The ESLL distinguishes between small and large covered employers and only requires the latter to provide paid sick leave.

[2] A copy of the SLTL can be found here.

[3] Under the SLTL, a "year" is defined as a regular and consecutive 12-month period as determined by the employer, other than a "calendar year," which is defined as January 1 to December 31 in any given year.

[4] The ESLL states that in the event of a sick leave absence of more than three consecutive work days, an employer may require the employee to provide "reasonable documentation" that the sick leave was used for a covered reason.

[5] Due to the sensitive nature of the paid safe leave documentation that will be received, employers should review their internal confidentiality procedures regarding document collection and storage.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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