The Intersection of NYS and Westchester County Sick and Safe Leave Laws-One Year Later

The Intersection of NYS and Westchester County Sick and Safe Leave Laws-One Year Later

New York State’s paid sick leave law (“PSLL”), which went into effect on September 30, 2020, mandates the payment of both sick and safe time leave to employees effective January 1, 2021. Also included within the purview of the PSLL is the availability of paid leave for “safe time” which includes absences from work when an employee or his/her “family member” has been the victim of domestic violence as defined by the State Human Rights Law (“SHRL”), a family offense, sexual offense, stalking, or human trafficking. As discussed below, the Westchester County Safe and Sick Leave Law, which went into effect on October 30, 2019, already required sick and “safe time” for Westchester County employees. As of September 30, 2020, Westchester County adopted the sick leave provisions of the NYS law but made it clear that it did not preempt the County’s Safe Time Leave Law (“STLL”). Unfortunately for employers, Westchester County has not issued any further guidance on the intersection of the two laws which differ in certain material respects as to the use of paid leave and the definitions of certain key terms under the respective laws.

Overview of NYS PSLL

The PSLL requires every employer in the state of New York to provide its employees with job protected sick leave. Employers with four or fewer employees must provide each employee with up to 40 hours of unpaid sick leave in each calendar year; employers with between five and 99 employees must provide each employee with up to 40 hours of paid sick leave in a calendar year; and employers with 100 or more employees must provide each employee with up to 56 hours of paid sick leave in each calendar year.

Sick leave accrues at a rate of one hour for every 30 hours worked unless an employer elects to frontload all sick time at the beginning of the year. Employees begin accruing sick leave at the commencement of their employment or the effective date of the law (September 30, 2020), whichever is later.

Under the state sick leave law, employers must provide accrued sick leave for the following purposes:

1. For a mental or physical illness, or health condition of an employee or an employee’s family member, regardless of whether the illness, injury, or health condition has been diagnosed or requires medical care at the time the employee requests the leave;
2. For the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventative care for, an employee or an employee’s family member; or
3. For an absence from work due to any of the following reasons when the employee or employee’s family member has been a victim of domestic violence pursuant to subdivision 34 of Section 292 of the Executive Law, a family offense, sexual offense, stalking, or human trafficking:
   1. To obtain services from a domestic violence shelter, rape crisis center, or other services program;
   2. To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or the employee’s family members;
   3. To meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
   4. To file a complaint or domestic incident report with law enforcement;
   5. To meet with a district attorney’s office;
   6. To enroll children in a new school; or
   7. To take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

The reasons outlined in subsections (a) through (g) above must relate to domestic violence, family offense, sexual offense, stalking, or human trafficking. However, it is noted that if the employee is the person who committed these acts, s/he is ineligible for leave.

The law defines “family member” as an employee’s child, spouse, domestic partner, parent, sibling, grandchild, or grandparent; and the child or parent of an employee’s spouse or domestic partner. “Parent” is defined as a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child. “Child” is defined as a biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Employers cannot require employees to disclose any confidential information in verifying the need for sick leave, and employees have a right to be reinstated and protected against retaliation for exercising their rights under the state sick leave law.

Overview of Westchester County STLL

The Westchester County STLL entitles employees who work for more than 90 days in Westchester County and are victims of domestic violence or human trafficking to up to 40 hours of paid safe leave per year to (a) attend or testify in criminal or civil court proceedings related to domestic violence or human trafficking, or (b) move to a safe location. Unlike the New York state law, which provides eligible employees with leave that can be used for sick or safe leave purposes, the Westchester County safe time leave was intended to be in addition to the up to 40 hours of paid sick leave provided by the former Westchester County Safe and Sick Leave Law. In other words, employers in Westchester County may not require employees to use available sick time for purposes of safe leave.

Additionally, unlike sick leave under the PSLL, employees do not accrue safe time leave under the Westchester County STLL. Rather, they can use up to 40 hours of paid leave as needed. Safe time leave may be taken in full days or partial day increments.

When an employee’s use of safe time leave is foreseeable, the employee must make a good faith effort to provide advance notice to the employer and must try to schedule the use of the safe time leave so that they do not disrupt the business operations of the employer. When possible, the request for safe time leave should include the expected duration of the absence.  Employers are strictly prohibited from interfering with an employee’s right to use safe time leave or taking retaliatory action against an employee who has used or requested to use safe time leave.

Also, in contrast to the PSLL, employers may require employees to provide reasonable documentation to verify that the leave is being used for a permissible purpose, such as a court appearance ticket or subpoena; copy of a police report; an affidavit from an attorney involved in the court proceeding; or an affidavit from an authorized person from a reputable organization known to provide assistance to victims of domestic violence or human trafficking.

Finally, the Westchester County STLL provides a much broader definition of “family” than the PSLL. Specifically, the Westchester County STLL applies to family offense matters between spouses or former spouses, or between parent and child or between members of the same family or household. “Members of the same family or household” is defined as (i) persons related by consanguinity or affinity; (ii) persons legally married to or in a domestic partnership with one another; (iii) persons formerly married to or in a domestic partnership with one another regardless of whether they still reside in the same household; (iv) persons who have a child in common, regardless of whether such persons have been married or domestic partners or have lived together at any time; and (v) persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time.

As a best practice, where both state and local laws apply, employers should comply with the provisions of each law that most benefit the employee. In this case, covered employers in Westchester County remain obligated to comply with the provisions of the Westchester County STLL, and should do so in addition to providing paid sick leave under the NYS PSLL. One issue that courts will have to consider when administering these provisions is whether an employee who exhausts his or her safe time under the County law may use available sick time under NYS law for safe leave purposes. Employers should be aware of the key differences between the two laws and immediately review their policies to ensure compliance with them.

For additional information regarding this alert, please contact Joseph DeGiuseppe at JDeGiuseppe@bpslaw.com or 914-287-6144, or Gina Nicotera at gnicotera@bpslaw.com or 914-287-6190.