The New York City Council has passed a bill that would amend the NYC Earned Sick Time Act (“ESTA”) to expand the covered reasons for leave to include situations where an employee or an employee’s family member is a victim of domestic violence, sexual offenses, stalking or human trafficking. The bill would also expand the definition of a covered family member under the law.

The bill, which would rename the law the “NYC Earned Safe and Sick Time Act”, is now before Mayor Bill de Blasio for signature. The amendments would take effect 180 days after signing.

Expansion of Covered Reasons for Paid Sick Leave

Currently under ESTA, employees who work more than 80 hours per year in NYC are entitled to accrue up to 40 hours of paid sick leave per year to be used for the following covered purposes:

  • The employee’s own mental or physical illness, injury, or health condition, need for medical diagnosis, care, treatment or preventative care, or elective surgery, including organ donations;
  • Care of a family member who needs medical diagnosis, care, or treatment of an illness, injury, or health condition or preventative care, or who has elective surgery, including organ donations; and
  • Closure of employee’s workplace due to a public health emergency or to care for a child whose school or child care provider is closed due to a public health emergency.

Under the recently-passed bill, employees would also be entitled to use ESTA-protected leave for absences due to any of the following reasons when the employee or a family member has been the victim of domestic violence, sexual offenses, stalking or human trafficking as defined in the bill (“safe time”):

  • to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program;
  • to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future harm;
  • to meet with an attorney or other 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 family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, and/or discrimination in employment, housing or consumer credit;
  • to file a complaint or domestic incident report with law enforcement or meet with a district attorney’s office;
  • to enroll a child in a new school; or
  • to take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

Employers would be permitted to obtain “reasonable documentation” of the need for safe time following an absence of more than three consecutive work days (similar to the rule on obtaining documentation from a health care provider in the case of a medical-related absence). Such reasonable documentation may include a signed note from a victim services organization, attorney, member of a clergy, or medical provider, a police or court record, or a notarized letter from the employee documenting the need for such leave.  All such information obtained would need to be treated as confidential and an employer would not be permitted to require disclosure of specific details relating to the domestic violence, sexual offenses, stalking or human trafficking.

The bill would require employers to provide notice to current employees of their right to safe time within 30 days of the effective date of the amendments, as well as to new employees going forward.

Expanded Definition of Covered Family Members

The bill would also expand the definition of a covered family member under the law. Currently, employees may use ESTA-protected time to care for a spouse, domestic partner, parent, child, sibling, grandparent, grandchild or the child or parent of the employee’s spouse or domestic partner.  The bill would add the following two broad categories to the list of covered family members for purposes of taking sick and/or safe time:

  • any other individual related by blood to the employee; and
  • any other individual whose close association with the employee is the equivalent of a family relationship.

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We will continue to track this bill and report on additional developments.

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Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.