Employers operating in New York City should be reminded of two significant additions to the checklist of employment obligations that will become effective in the coming weeks.
Effective 1/30/14 – Pregnancy Notice and Accommodation in New York City
A new amendment to the New York City Human Rights Law imposes new obligations on employers with four or more employees. The Human Rights Law has existing prohibitions against gender, pregnancy and disability discrimination. The amendment expands notice and accommodation obligations for pregnancy and pregnancy-related conditions, even if they do not qualify as a “disability” under the law.
The New York City Council stated that it “finds that pregnant women are vulnerable to discrimination in the workplace in New York City. … It is the intent of the Council to combat this form of discrimination by requiring employers to provide reasonable accommodations to pregnant women and those who suffer medical conditions related to pregnancy and childbirth.”
Therefore, New York City employers:
- Must provide a written notice of rights under the new law at the time of hire to all individuals hired on or after January 30, 2014.
- Must provide a written notice of rights under the new law to all existing employees, regardless of date of hire, on or before May 30, 2014.
- Must reasonably accommodate an employee’s “pregnancy, childbirth, or related medical condition that will allow the employee to perform the essential requisites of the job,” provided that (i) the pregnancy, childbirth or related medical condition “is known or should have been known” by the employer, and (ii) such accommodation does “not cause undue hardship in the conduct of the covered entity’s business.” Potential accommodations could include, depending on the circumstances, assistance with manual tasks, breaks, leave/time off or work station changes. As with disability accommodations, it is the employer’s burden to prove that an accommodation would pose an “undue hardship.”
- May – but are not required to – post written notice of rights under the new law at an accessible location in the workplace.
Effective 4/1/14 – Paid Sick Time Off in New York City
The New York City Council also jumped in the ring of a recent trend in requiring employers to provide certain paid sick time off (to the extent existing policies do not already do so). In that vein, the council found that “nearly every worker at some time during each year will need time off from work to take care of his or her health needs of family members. Providing the right to earned sick time will therefore have a positive effect on the public health of the City and lessen the spread of and exposure to diseases.”
Therefore, New York City employers must now comply with the “Earned Sick Time Act,” which becomes effective on April 1, 2014. The act contains numerous definitions and terms of art, and the primary highlights of the new law are:
- Coverage – New York City employers with 20 or more employees must provide paid sick time in accordance with the law beginning on April 1, 2014. Beginning on October 1, 2015, the coverage threshold is lowered to employers with 15 or more employees. Employees who work at companies that do not meet the threshold requirements are nevertheless entitled to job protection for up to 40 hours of unpaid sick time each year.
- Earning and Accrual – Employers must provide at least one hour of sick time for every 30 hours worked by the employee, up to a maximum of 40 hours of sick time in a calendar year. Sick time begins to accrue as soon as the employee is hired (so long as on or after April 1), however an employee can only start using accrued sick time upon the later of 120 days after the commencement of the employee’s employment, or 120 days after the April 1 effective date of the new law.
- Use of Sick Time – Employees get to determine how much accrued sick time they need to use, although employers can “set a reasonable minimum increment for the use of sick time not to exceed four hours per day.” Sick time may be used only for the following reasons: (i) the employee’s mental or physical illness, injury or health condition, or need for medical diagnosis, care or treatment of such an illness, injury or health condition; (ii) the employee’s need for preventative medical care; (ii) the care of an employee’s family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; (iii) the care of an employee’s family member who needs preventative medical care; (iv) closure of the employee’s place of business by a public official due to a public health emergency; or (v) the employee’s need to care for a child whose school or childcare provider has been closed by a public official due to a public health emergency. Employers may require an employee to provide written confirmation that the employee used sick time in accordance with the new law.
- Carry-Over of Unused Sick Time – Unused accrued sick time must be carried over to the following calendar year. However, at no time is an employer required to allow the use of more than 40 hours of sick time in any calendar year, and an employer may choose not to allow unused paid sick time to carry over if the employee is paid for such unused paid sick time by the end of the applicable calendar year. In addition, employers are not required under the law to pay for unused sick time upon “termination, resignation, retirement, or other separation from employment.”
- Notice of Need for Sick Time – Employers are permitted to require reasonable notice of the need to use sick time. When the need is foreseeable, employers may require no more than 7 days’ notice, and, when not foreseeable, employers may require notice to be given as soon as practicable.
- No Retaliation – Employers may not retaliate or threaten to retaliate against an employee for exercising or attempting to exercise rights under the new law.
- Notice to Employees – Employers are required to provide employees at the commencement of their employment with written notice of the employee’s rights to sick time under the new law.
Reminder Takeaways for New York City Employers
- Make sure that your policies and practices are updated to include the new pregnancy accommodation requirements, and, if they do not already, provide at least the minimum paid or unpaid sick time required under the new Earned Sick Time Act.
- Provide all required notices to employees under both new schemes in a timely manner.
- Effectively train your human resources professionals and managers on the new requirements, including the appropriate interactive process that must now take place when a covered pregnancy-related accommodation need arises, and the proper administration and tracking of your company’s paid/unpaid sick leave program.