Seyfarth Synopsis: As of tomorrow, October 30, 2019, the Westchester County, NY Safe Time Leave Law will require covered employers to allow eligible employees to use up to 40 hours of paid safe leave per year for certain reasons when they are victims of domestic violence or human trafficking. The 40 hours of paid safe time are in addition to any sick time provided under the County’s separate sick time mandate. Employers should review the County's recently released FAQs and model notices of employee rights as they finalize compliance measures ahead of the looming effective date.
The Westchester County Earned Sick Leave Law (“ESLL”) was passed late in 2018. While the ESLL covers a number of “sick time” absences, most notably absences due to an employee’s or their family member’s illness or injury, it conspicuously lacks language regarding “safe time” absences. This apparent shortcoming went against recent paid sick leave law trends—especially regional trends in light of the New York City Earned Safe and Sick Time Act’s “safe time” amendments and the “safe time” provisions of the New Jersey Earned Sick Leave Law, which took effect in May and October 2018 respectively.
An explanation for ESLL’s “safe time” silence appeared several months later. In May 2019, the County passed the Safe Time Leave Law (“STLL”), and became the first jurisdiction to impose mandatory paid safe leave obligations on covered employers that are separate and apart from the jurisdiction’s mandatory paid sick leave obligations. The impact of County’s separate sick and safe leave setup is emphasized by the STLL’s language that the 40 hours of safe leave is in addition to sick leave provided under the ESLL.
To clarify certain employer obligations under the STLL, the Westchester County Human Rights Commission recently released employer FAQs, employee FAQs, and English and Spanish model notices of employee rights. Highlights of the County’s STLL administrative guidance include:
- Amount of Safe Leave: As previously reported, unlike existing paid sick leave laws and ordinances, including the ESLL, the STLL does not contain accrual or carryover provisions. The FAQs confirm “[t]here is no accrual of safe time leave. Covered employees are entitled to take up to 40 hours of paid [safe time] leave, in any year or calendar year.”
- Usage Waiting Period: The FAQs indicate a permissible safe leave usage waiting period of 90 days after an eligible employee’s first date of employment. Despite some uncertainty under the STLL’s language, this clarification is largely unsurprising—as a reminder, “employee” is defined as “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.” Relatedly and importantly, the FAQs confirm that “Employees who have already worked for an employer for 90 days by October 30, 2019, are covered employees who are eligible to take safe time leave as of October 30, 2019.”
- Rate of Pay: The FAQs state that safe leave must be paid at the hourly rate the employee normally earns during hours worked. This point was not addressed in the STLL as drafted.
- Notice to Employees: Under the STLL, employees must receive a notice of rights (the “Notice”) and a copy of the actual STLL upon commencement of employment or 90 days after the STLL’s effective date, whichever is later. The FAQs confirm that existing employees must receive the Notice and STLL copy by January 28, 2020, and employees hired after that date must receive these items upon commencement of employment. Although neither the STLL nor the County's corresponding FAQs and Notice do not contain any express language requirements associated with the Notice and copy of law distribution requirement, the County has released English and Spanish model notices.
- Posting: The STLL requires, and guidance confirms, that employers also must post STLL posters and a copy of the law in English and Spanish (and other languages deemed appropriate). Copies of the model posters are not yet available.
Beyond the above updates, the FAQs confirm certain other provisions of the STLL as written (e.g., notice, documentation, eligibility, etc.), and leave open questions as to whether (a) year-end carryover is required, (b) safe leave may be used when family members are domestic violence victims, (c) employers have recordkeeping obligations, and (d) employers may set a minimum usage increment of paid safe leave. The FAQs do, however, provide a non-exhaustive list of examples of employer actions that could be considered retaliatory, and some insight on the County’s complaint investigation and resolution process.
Employers should finalize compliance measures as soon as possible in light of the STLL’s October 30, 2019 effective date. Here are some steps to consider:
- Review existing paid leave policies and either implement new policies or revise existing policies to satisfy both the Westchester County ESLL and STLL.
- Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with both mandates.
- Monitor the Westchester County Human Rights Commission’s website for the release of model posters and potential further guidance on employer obligations.
- Train supervisory and managerial personnel, as well as HR, on the new requirements of the STLL and its interplay with existing sick time obligations.
We will continue to monitor and provide updates on Westchester County paid safe leave and paid sick leave developments as the safe time effective date approaches and on any subsequent changes.
As the paid sick and safe leave landscape continues to expand, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this Law and sick leave requirements generally. To stay up-to-date on PSL developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list.