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Other Leaves: New York

Other Leaves requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Jessica Sussman

Summary

  • New York state law provides various leaves in addition to those leaves granted by federal law. See New York - Leaves of Absence.
  • New York employers are subject to a variety of family and medical leave laws. See Family and Medical Leave of Absence.
  • All employers in New York that permit employees to take a leave of absence for the birth of a child must also provide the same time off to employees who adopt a child. See Adoption Leave.
  • New York's Human Rights Law prohibits sex discrimination and bans employment policies that treat pregnancy and childbirth less favorably than other instances of physical or medical impairment. See Pregnancy Disability Leave.
  • New York employers must provide up to three hours of paid time off to vote. See Voting Leave.
  • New York employers may not terminate an employee for an employee's jury service or for attendance in connection with such service. See Jury Duty Leave.
  • New York private employers with 20 or more employees in at least one worksite must provide a leave of absence to an employee to donate bone marrow. See Bone Marrow Donation Leave.
  • Employers must also notify employees in writing of their right to take blood donation leave. Such notification must be made in a way that ensures employees will see it. See Blood Donation Leave.
  • An employer must grant a leave of absence to an employee performing duties as a volunteer firefighter or member of a volunteer ambulance service during a declared emergency. See Emergency Responder Leave.
  • New York Human Rights Law prohibits employers from requiring employees to forgo a religious observance as a condition of employment. See Leave for Religious Purposes.
  • Localities including New York City and Westchester County have requirements pertaining to other leaves. See Local Requirements.

New York - Leaves of Absence

There are numerous types of leave that may be available to employees in New York which are required by federal, state or local law, and may be affected by an individual employer's policies. To the extent federal, state and local laws differ, whichever law provides greater benefits and protection to the employee will apply.

Employers should note that leave required by a state or local law is not taken into account when determining the amount of leave provided by an employer for federal tax credit purposes under the federal tax reform law.

Family and Medical Leave of Absence

New York employers are subject to a variety of family and medical leave laws. At the state level, for example, a New York employer may have obligations under the New York Military Spouse Leave law and the paid family leave benefits law, among others. At the federal level, New York employers with 50 or more employees within a 75-mile radius will likely be required to adhere to the federal Family and Medical Leave Act (FMLA).

Adoption Leave

All employers in New York that permit employees to take a leave of absence for the birth of a child must also provide the same time off to employees who adopt a child. +NY CLS Labor § 201-c(1). This protection applies only to parents who adopt children who are of preschool age or younger, or who adopt children under the age of 18 and deemed "hard to place" or handicapped under the Social Services Law. For more information on this topic, please see Employee Leaves > FMLA: New York.

New York Military Spouse Leave

Under the New York Military Spouse Leave law, employers with 20 or more employees at one or more worksite must provide up to 10 days of unpaid leave when the employee's spouse (including a same-sex spouse) is a member of the armed forces, National Guard or reserves and is deployed during a period of military conflict to a combat theater or zone of operations. +NY CLS Labor § 202-i. For more information on this topic, please see Employee Leaves > FMLA: New York > New York Military Leave.

Temporary Disability Insurance

New York's state temporary disability benefits (TDB) program provides partial wage replacement to workers that qualify. This is a monetary benefit, not a leave entitlement. These paid TDB benefits can be received while the employee is on leave under the federal FMLA. TDB is available for a maximum of 26 weeks and is paid for either entirely by the employer or jointly with the employee, subject to certain restrictions. Employers with one or more employees for 30 days in a calendar year must either purchase insurance or establish a state-approved self-insurance plan. Employees receive 50 percent of their average weekly earnings. Paid benefits begin after the first seven days of the disability.

Paid family leave (PFL) benefits are phased in beginning January 1, 2018, and reaching full implementation by January 1, 2021. When fully implemented, employees will be eligible to take up to 12 weeks of leave at 67% of their average weekly wage. The cost of the leave benefits is paid through weekly payroll deductions for eligible employees. For more information, please see FMLA: New York.

Pregnancy Disability Leave

Under New York's Human Rights Law, pregnancy is treated as a temporary disability. Private employers must give pregnant employees the same treatment and benefits that they give to other employees with temporary disabilities. An employer cannot force an employee who is pregnant to take a leave of absence, unless the pregnancy prevents the employee from performing the activities involved in her job or occupation in a reasonable manner. +NY CLS Exec § 296(1)(g). An employer is similarly prohibited from forcing a pregnant unpaid intern to take a leave of absence. For more information on this topic, please see Employee Leaves > FMLA: New York.

Employers in New York City may have additional requirements related to pregnant employees.

Voting Leave

Employees may take as much time off as needed that enables them to vote at any election. However, an employer is required to pay only up to three hours.

An employee may take time off to vote only at the beginning or end of his or her shift, as designated by the employer, unless otherwise mutually agreed.

Employees must notify their employer that they require time off to vote not less than two working days before the day of the election.

An employer must conspicuously post a notice of employee voting leave rights in the workplace where it can be seen as employees come or go. The notice must be posted not fewer than 10 working days before every election and must be kept posted until the polls close on election day.

+NY CLS Elec § 3-110, as amended by +2019 Bill Text NY S.B. 1505 (Part YY).

Military Leave

The New York State Military Law prohibits employers from:

  • Discriminating against or refusing to employ citizens and residents of New York because they are subject to federal or state military obligations; and
  • Soliciting, requiring, demanding or otherwise making a request that a person waive his or her rights under New York's Military Law.

+NY CLS Mil § 318(1).

Upon return from leave, eligible employees (other than temporary employees) are entitled to reinstatement in their previous position or a position of similar status and pay. In order to be eligible for reinstatement, an employee must:

  • Receive a certificate of completion of military service;
  • Be qualified to perform the duties of his or her position; and
  • Apply for reemployment within 90 days after being relieved of his or her military obligations (or 60 days, or in some cases 10 days, for certain types of training).

For more information on military leave, please see Employee Leaves > USERRA: New York.

Bereavement Leave

While New York does not require an employer to provide bereavement (or funeral) leave, if an employer chooses to provide married employees with bereavement leave, then the employer must also provide this leave to same-sex committed partners. More specifically, employers that offer employees bereavement leave for the death of a spouse or the death of the parent, child or other close relative of a spouse must offer the same bereavement leave to employees for the death of a same-sex committed partner or the death of the parent, child or other close relative of the same-sex committed partner. Same-sex committed partners are defined as individuals who are financially and emotionally interdependent in a manner commonly presumed of spouses. +NY CLS Civ R § 79-n. Unfortunately, the law fails to offer employers guidance as to how they can determine and verify that an employee requesting leave is actually in a committed relationship.

Note that this law remains in effect despite the fact that same-sex marriage has been recognized in New York since 2011 and became legal nationwide in June 2015.

New York employers should also note that while the Family and Medical Leave Act (FMLA) does not generally cover bereavement leave, it does allow leave for qualifying exigencies when a employee's spouse, child or parent is on active duty or called to active duty status. One of the covered qualifying exigencies is to address issues that arise from the death of a covered military member while on active duty status (such as meetings, recovering the body and making funeral arrangements).

Jury Duty and Crime Victim/Witness Leave

Jury Duty

All New York employers must provide jury duty leave to full-time and part-time employees. An employer may ask employees to provide proof of service from the court verifying the dates of their service. Employees must provide employers with notice prior to taking time off to respond to a jury summons. +NY CLS Jud § 519.

Leave may be unpaid, unless the employer employs more than 10 employees, in which case the employer must not withhold the first $40 of a juror's daily wage during the first three days of jury service. +NY CLS Jud § 519. An out-of-state employer with more than 10 employees working in New York must pay New York employees a jury fee for the first three days of service. An out-of-state employer that employs a New York resident at an out-of-state location is not required to pay the jury fee. For more information on jury duty leave, please see Employee Leaves > Jury Duty: New York.

Crime Victim/Witness Leave

An eligible employee may take leave from work to comply with a subpoena to:

  • Testify in a criminal proceeding (including time off to consult with the district attorney);
  • Give a statement at a sentencing proceeding;
  • Give a victim impact statement at a pre-sentencing proceeding; or
  • Give a statement at a parole board hearing.

+NY CLS Penal § 215.14; +NY CLS Exec § 621.

Employees are eligible for leave if the employee is:

  • The victim of the crime at issue in the proceedings;
  • The victim's next of kin;
  • The victim's representative (a person who represents or stands in the place of another person, including an agent, assignee, attorney, guardian, committee, conservator, partner, receiver, administrator, executor or heir, or a parent of a minor) if the victim is deceased as a resulted of the offense;
  • A good samaritan (i.e., a person who acts in good faith to: (1) apprehend a person who has committed a crime in his/her presence; (2) prevent a crime or an attempted crime from occurring; or (3) aid a law enforcement officer in effecting an arrest); or
  • Pursuing an application or enforcement of an order of protection as provided under the law.

Employees must provide their employer with notice of their intent to take crime victim/witness leave no less than one day prior to needing the leave. An employer may also request that the party who sought the employee's attendance or testimony provide verification of the employee's service. +NY CLS Penal § 215.14.

An employer may withhold an employee's wages during the leave time.

Employers may not terminate or penalize an employee because the employee:

  • Exercises his or her rights as a crime victim; or
  • Is required to attend court as a witness in a criminal proceeding.

Domestic Violence Leave

New York employers may not discriminate against, refuse to hire or terminate victims of domestic violence or release any of the information the employee provides except when such disclosure is required by state or federal law. +NY CLS Exec § 296.

Employers in Westchester County may have additional requirements related to domestic violence victims.

Bone Marrow Donation Leave

New York private employers with 20 or more employees in at least one worksite must provide a leave of absence to an employee to donate blood marrow. +NY CLS Labor § 202-a.

In order to be eligible for this leave, an employee must perform services for hire for an average of 20 or more hours per week. Independent contractors are not eligible for this leave. +NY CLS Labor § 202-a; +NY CLS Labor § 202-b(1).

The combined length of leaves is to be decided by a physician; however, the cumulative leave should not exceed 24 work hours unless the employer agrees to do so. The employer may require a physician's verification of the purpose and length of each leave requested.

Retaliation against an employee for requesting or obtaining a leave of absence is prohibited.

Blood Donation Leave

New York private and public employers with 20 or more employees in one or more worksites must provide an employee (i.e., any person who performs services for hire for an employer, for an average of 20 or more hours per week, including all individuals employed at any site owned or operated by an employer, excluding independent contractors) with either:

  • Off-premises leave - up to three hours of unpaid leave time to donate blood within any 12-month period (any additional time should be agreed to by the employer); or
  • Blood donation leave alternatives - an opportunity to donate blood during work hours (such as through a blood drive) at a convenient times and place. Such a leave must be provided at least two times per year, at least 60 days apart and without requiring the employees to use accrued leave time.

Except in emergencies, an employer may require an employee to provide reasonable notice of the need for blood donation leave. Reasonable notice is considered three workdays for off-premises blood donation and two workdays for on-site and other alternative blood donation drives.

An employer must also notify an employee in writing of the right to take blood donation leave. Such notification must be made in a way that ensures an employee will see it, such as by posting the notice in a prominent location where employees congregate (e.g., break rooms, places where other notices are posted, HR). An employer may include the notice with an employee's paycheck or in an employee handbook or use another comparable method.

An employer may not retaliate against an employee for requesting or obtaining a leave of absence under this section. +NY CLS Labor § 202-j.

Emergency Responder Leave

An employer (not including the state) must grant a leave of absence to an employee performing duties as a volunteer firefighter or member of a volunteer ambulance service related to a declared emergency, unless the employee's absence would impose an undue hardship on the employer's business. +NY CLS Labor § 202-l.

A covered emergency includes a local state of emergency and a state declaration of disaster emergency. +NY CLS Exec § 24; +NY CLS Exec § 28.

For nonexempt employees, the leave may be unpaid or otherwise charged against any other leave to which the employee is entitled, as determined by the employee.

Prior to the leave, the employer must have received written documentation from the head of the employee's volunteer fire department or volunteer ambulance service notifying the employer of the employee's status as a volunteer firefighter or member of a volunteer ambulance service.

The employer may request a notarized statement from the head of the fire department or ambulance service certifying the period(s) of time that the employee responded to an emergency under this law.

Leave for Religious Purposes

New York Human Rights Law prohibits employers from requiring employees to forgo a religious observance as a condition of employment. If an employee requests time off to observe a holy day of his or her religion and that day falls on a regular workday, and the employer allows employees to take regular workdays off for personal reasons, the employer cannot deny the day off for religious observance.

Accommodation issues typically arise when an employee's religious practices conflict with his or her assigned work schedule. Even if the employer does not allow employees to take days off for personal reasons, the employee's requested accommodation for religious observance can be denied only if attendance during regular workdays is an essential function of the job, or the accommodation would present an undue hardship. An undue hardship is an accommodation requiring significant expense or difficulty to the employer.

An employer is not required to pay premium pay, such as night shift or weekend differentials, if the work during those hours is to accommodate an employee's religious observance. +NY CLS Exec § 296(10); +NYC Administrative Code 8-107(3).

When an employee takes religious leave, the employee must either:

  • Make up the missed time; or
  • Take any leave with pay that is ordinarily granted (except sick leave).

An absence not made up or charged to paid leave time may be treated by the employer as leave taken without pay.

Employer Provided Leave

Many employers provide additional types of leaves not required by federal or state law in order to establish a better environment for their employees. This can lead to greater employee satisfaction and retention. Such leave policies include, but are not limited to:

  • Holidays;
  • Sick leave;
  • Unpaid personal leaves of absence; and
  • Bereavement leave.

Employers should remember to always apply leave policies in an unbiased manner. See Employee Leaves > Other Leaves: Federal; Employee Benefits > Paid Time Off Benefits: Federal.

Training

An employer should be aware that certain leaves are protected by state law, and, therefore, it should train its supervisory employees not to take action against an employee because he or she took leave or indicated that he or she may take leave in the near future. See Employee Management > Training and Development.

Employees who exercise their leave rights are not protected from discipline for legitimate reasons that are unrelated to their leave and that are not otherwise prohibited by law.

If the employer must discipline an employee who has exercised his or her leave rights, the employer should carefully document the reasons for the discipline, review past application of the rule (to ensure the policy is being enforced evenhandedly) and consider whether to seek the advice of counsel before imposing the discipline.

Local Requirements

New York City Paid Sick Leave

New York City's Earned Safe and Sick Time Act (ESSTA) requires certain employers to provide eligible employees with paid safe and sick leave that an employee can use for his or her own or a covered family member's medical care and treatment, for a public health emergency or for domestic and sexual violence. +NYC Administrative Code 20-911.

Covered employers. The ESSTA applies to New York City (NYC) employers and to employers located outside NYC with employees working in NYC. Federal, state and local government employers are not required to comply with the ESSTA.

A covered employer:

  • With five or more employees must provide eligible employees with up to 40 hours of paid safe and sick leave every calendar year;
  • With fewer than five employees must provide eligible employees with up to 40 hours of unpaid safe and sick leave every calendar year; and
  • With one or more domestic workers must provide eligible workers with two days of paid safe and sick leave every calendar year.

+NYC Administrative Code 20-912; +NYC Administrative Code 20-913.

An employer must count all full-time, part-time and temporary employees who work more than 80 hours in a calendar year (regardless of where they live) when determining how many employees it has.

New businesses that have been in operation for less than a year must count the number of employees performing paid work per week. If the number fluctuates between fewer than five employees and five or more employees per week, a new employer may use the average number of employees per week who worked each week during the 80 days immediately preceding the date the employee used safe and sick time. +6 RCNY 7-202.

An employer that has been in business for a year or more must count the number of employees working for the employer per week at the time the employee uses safe and sick time. If the number of employees fluctuates between fewer than five and five or more at least three times in the most recent calendar quarter, the employer must calculate the average number of employees per week during the previous calendar year.

If an employer is part of a chain or has multiple locations, the total number of employees includes employees at all locations in NYC if:

Joint employment. Each joint employer (e.g., an employer and a temporary help firm) must count each employee jointly employed in determining the number of employees. All of an employee's work for each of the joint employers is considered as a single employment for purposes of using and accruing safe and sick time. All joint employers are individually and jointly responsible for complying with the ESSTA. +6 RCNY 7-101; +6 RCNY 7-105.

Whether an employer is a joint employer depends on whether it exercises some control over an employee's work or working conditions. Factors used to help make this assessment include, but are not limited to, whether:

  1. The employer established policies or practices related to the employment, supervision and/or working conditions of the employee;
  2. The employer has the power to hire and fire the employee;
  3. The employer supervises and controls the employee's work schedule or employment conditions;
  4. The employer determines the rate and method of payment;
  5. The employer maintains the employee's employment records;
  6. The employee uses the business's premises and equipment;
  7. The employee performs discrete work that is integral to the business's production or work;
  8. The employee works exclusively or predominantly for the business; and
  9. The employer provides training to the employee.

Employee eligibility. An employee is eligible for leave if he or she works within NYC for more than 80 hours in a calendar year. Employees eligible for leave under the ESSTA include:

  • Full-time employees;
  • Part-time employees;
  • Temporary employees;
  • Per diem and on-call employees;
  • Transitional jobs program employees;
  • Undocumented employees;
  • Supervisors and managers;
  • Employees who are family members but not owners;
  • Employees who live outside NYC, but work in NYC; and
  • Owners who are considered employees under the New York labor law.

A calendar year is a regular and consecutive 12-month period, as determined by the employer (i.e., not necessarily January 1 to December 31; it can be a fiscal year, tax year, academic year, based on employees' anniversary date, etc.). An employer must include the chosen calendar year in the written notice it is required to provide to employees.

Domestic workers are also eligible for leave if they work for the same employer for at least one year and more than 80 hours per calendar year in a NYC home or residence. A domestic worker means a person who provides:

  • Care for a child;
  • Companionship for a sick, convalescing or elderly person;
  • Housekeeping; or
  • Any other domestic service in a home or residence.

A domestic worker does not include any person who is employed by an agency whenever the person provides services as an employee of the agency, regardless of whether he or she is jointly employed by an individual or private household in the provision of such services.

+NYC Administrative Code 20-912; +6 RCNY 7-201; +6 RCNY 7-203.

Airline flight crew employees based out of NYC airports are presumed to meet the threshold for ESSTA eligibility. The NYC Department of Consumer and Worker Protection (DCWP) has issued guidance on flight crew employees' eligibility for and accrual and use of paid safe and sick leave.

For employees covered by a valid collective bargaining agreement (CBA) in effect on May 5, 2018, the safe time amendments take effect when the CBA expires.

Ineligibility for leave. The ESSTA does not apply to certain individuals, such as:

  • Employees who work 80 hours or fewer in a calendar year in NYC;
  • Government agency employees;
  • Students in federal work study programs and employees whose work is paid through a qualified scholarship program;
  • Physical therapists, occupational therapists, speech language pathologists and audiologists who are licensed by the New York State Department of Education if they:
    • Call in for their work assignments at their own will;
    • Set their own schedules;
    • Have the ability to accept or reject job assignments; and
    • Are paid an average hourly rate of at least four times the federal minimum wage;
  • Employees who telecommute outside of NYC, even if their employer is physically located in NYC;
  • Participants in Work Experience Programs;
  • Independent contractors (though an employer must be careful of misclassifying employees as independent contractors); and
  • Owners who do not meet the definition of employee under the New York labor law.

In addition, ESSTA requirements do not apply to employees covered under a valid collective bargaining agreement (CBA) in effect as of April 1, 2014, until the date the CBA is terminated, if:

  • The ESSTA is expressly waived in the CBA; and
  • The CBA provides employees with a comparable benefit such as paid time off (e.g., vacation, personal or sick time), compensation (e.g., holiday and Sunday time pay at premium rates) or other employee benefits.

For employees in the grocery and construction industries, the ESSTA does not apply if the CBA expressly waives the ESSTA; their employers do not need to provide a comparable benefit.

+NYC Administrative Code 20-912; +NYC Administrative Code 20-916.

Qualifying reasons for leave. An eligible employee may use safe and sick leave for any of the following reasons:

  • The employee's mental or physical illness, injury or health condition;
  • The employee's need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or the need for preventive medical care (e.g., for a doctor, dentist or eye appointment, including checkups, screenings and patient counseling);
  • To care for a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care;
  • If the employee's workplace or the employee's child's school or childcare provider closes by order of a public official because of a public health emergency (i.e., a public health emergency must be declared by NYC's Mayor or the NYC Commissioner of Health); and
  • The employee or a family member has been the victim of a family offense matter, a sexual offense, stalking or human trafficking and needs to:
    • Obtain services from a domestic violence shelter, rape crisis center or other shelter or services program for relief from a family offense matter, sexual offense, stalking or human trafficking;
    • Participate in safety planning, temporarily or permanently relocate, or take other actions to increase the employee's or a family member's safety from future family offense matters, sexual offenses, stalking or human trafficking;
    • Meet with a civil 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 family offense matters sexual offenses, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, and discrimination in employment, housing or consumer credit;
    • File a complaint or domestic incident report with law enforcement;
    • Meet with a district attorney's office;
    • Enroll children in a new school; or
    • Take other actions necessary to maintain, improve or restore the employee's or a family member's physical, psychological or economic health or safety or to protect those who associate or work with the employee.

Practical Example

Someone from Ruby's neighborhood has been following her. Recently, someone broke into her apartment while she and her 10-year-old son were out. No one was physically harmed, but Ruby suspects that it was the person who has been following her and she does not feel safe staying in her neighborhood anymore. She has decided to move in with her mom in another school district. Ruby needs to take a day off from work to enroll her son in his new school and to move their belongings to storage and her mom's apartment. The acts against Ruby can constitute the crime of stalking, so she may use safe leave to enroll her son in a new school.

Practical Example

Warren is mugged on his way to work. He needs to take time off from work to go to the police station. Since the mugging is not an act of domestic or sexual violence, stalking or human trafficking, the ESSTA does not apply.

A family member includes the following:

  • A spouse (including a same-sex spouse);
  • A registered domestic partner;
  • A child (including a child of a spouse or domestic partner; a biological, adopted, foster or stepchild; a legal ward; or a child of an employee standing in loco parentis);
  • A parent (including biological, foster, step- or adoptive parent or legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor), parent-in-law or parent of a domestic partner;
  • A grandparent;
  • A grandchild;
  • A sibling (including a half, step or adopted sibling);
  • Any individual related by blood to the employee; and
  • Any other individual whose close association with the employee is the equivalent of a family relationship.

A parent may not use safe and sick leave for bonding purposes; however, a mother may use safe and sick leave during any period of sickness or disability following the birth of her child, and the other parent may use safe and sick leave to care for the mother during this period. If disability-related, paid safe and sick leave may run concurrently with the FMLA.

A family offense matter means an act or a threat of an act that may constitute disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or blood circulation, assault, attempted assault, identity theft, grand larceny or coercion between spouses or former spouses, between parent and child or between members of the same family or household.

A member of the same family or household means:

  • Persons related by consanguinity or affinity;
  • Persons legally married to or in a domestic partnership with one another;
  • Persons formally married to or in a domestic partnership with one another, regardless of whether they still reside in the same household;
  • Persons who have a child in common, regardless of whether they have been married or domestic partners or have lived together at any time; and
  • Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship, regardless of whether they have lived together at any time.

Practical Example

Luis moved to New York from Puerto Rico 20 years ago. His grandmother's friend, Mariana, has always treated him like family, having him over for dinner every Sunday and during holidays and helping to care for Luis's children. Luis has always referred to her as his "second grandmother" and frequently accompanies her to doctors' appointments. Marianna is a covered family member of Luis because they have a close association that is the equivalent of a family relationship, even though they are not related by blood and have never lived together.

The ESSTA refers to New York penal law in defining sexual offense (Article 130), stalking (+NY CLS Penal § 120.45; +NY CLS Penal § 120.50; +NY CLS Penal § 120.55; +NY CLS Penal § 120.60) and human trafficking (+NY CLS Penal § 135.35; +NY CLS Penal § 135.36; +NY CLS Penal § 230.34).

+NYC Administrative Code 20-912; +NYC Administrative Code 20-914.

Accrual and use of leave. A covered employer must allow an eligible employee to accrue at least one hour of safe and sick time for every 30 hours worked (hours worked literally means hours actually worked, not paid time off), up to a maximum of 40 safe and sick time hours in a calendar year. Only hours worked in NYC count towards the 30-hours-worked requirement. Accrual starts at the beginning of employment or upon the expiration of a valid CBA.

An employer can always allow employees to accrue safe and sick time at a faster rate (e.g., one hour for every 10 hours worked).

Exempt salaried employees are assumed to work 40 hours a week for purposes of safe and sick time accrual. However, if their regular workweek is fewer than 40 hours, then safe and sick time accrues based on their regular workweek.

If an employee is scheduled and available to work an on-call shift and is paid for the scheduled time regardless of whether the employee works, that time is considered hours worked for accrual purposes. For employees paid on a piecework basis or on a commission basis, accrual is measured by the actual length of time spent working.

While an employee must accrue one hour for every 30 hours worked, an employer may set a minimum leave usage increment. This increment may not be more than four hours per day, must be reasonable under the circumstances and must be included in the employer's written safe and sick leave policy. For use of accrued safe and sick time beyond the minimum increment, an employer may set fixed periods of 30 minutes or any smaller amount of time, and may require fixed start times for such intervals (e.g., on the hour). +NYC Administrative Code 20-913.

Practical Example

Acme Art Supplies has set a minimum increment of four hours per day for the use of safe and sick time. Terence has accrued three hours of safe and sick time when he needs to take his son to the doctor. It would not be "reasonable under the circumstances" for Acme to require Terence to use a minimum of four hours of safe and sick time.

Practical Example

Andrea also works at Acme Art Supplies. She works from 8:00 a.m. to 4:00 p.m., and has accrued eight hours of safe and sick time. She has notified her supervisor that she has a doctor's appointment the next morning at 9:00 and will not arrive to work until 11:00. It would be reasonable for the supervisor to tell her to arrive at 12:00.

Andrea arrives to work at 12:17. Acme's policy requires employees to use safe and sick time in half-hour intervals that start on the hour or the half hour. Therefore, Acme may require her to use four-and-one-half hours of safe and sick time and to begin work at 12:30.

Employees may start to use any of their accrued time 120 calendar days after the start of employment.

Accrued leave may only be used when employees are working in NYC. Per diem or on-call employees may only use accrued leave for hours they have been scheduled to work, which does not include shifts for which the employee has been asked to be available or on call, unless the employee is required to remain on call on the employer's premises. For employees with indeterminate shift lengths (e.g., shift is defined by business needs), the hours of safe and sick time used is based on the hours worked by the replacement employee for the same shift. If this method is not possible, then the employer must look at the hours most recently worked by the employee for the same shift.

An eligible domestic worker accrues two days of safe and sick leave after being on the job for one year. The two days must be calculated in the same manner that paid days of rest for domestic workers are calculated under +NY CLS Labor § 161(1); +NYC Administrative Code 20-913. A domestic worker is entitled to use the two days of paid safe and sick time on the next date that he or she is entitled to a paid day or days of rest, and then annually thereafter on that date.

An employer and an employee may mutually agree to allow the employee to work additional hours during the prior or subsequent seven days without using his or her safe and sick time, if the use of safe and sick time is planned (foreseeable). An employer may not require the employee to work additional hours to make up for the original hours or to search for/find a replacement employee to cover the hours missed. Employers can require employees to sign a form if they want to work additional hours instead of using their safe and sick leave. The DCWP provides a model form titled Employee Request to Make up Missed Work as Alternative to Using Earned Sick Leave. +NYC Administrative Code 20-915.

The DCWP has also developed safe and sick leave timekeeping tools to help an employer keep track of employees' hours worked and safe and sick time used and automatically calculate accruals and end-of-the-year carryover of safe and sick leave. Use of the DCWP's tool corresponds to how an employer keeps track of hours worked (e.g., daily, weekly or bi-weekly). An employer can always choose its own timekeeping method of service.

Carryover. An employee may carry over up to 40 hours of unused accrued time to the next calendar year. The carried over time may be used immediately. While the ESSTA seems to ban use-it-or-lose-it policies, the employer may still cap the total amount of safe and sick leave used to 40 hours per calendar year (regardless of the amount of time carried over). +NYC Administrative Code 20-913.

Practical Example

Dimitri has accrued 40 hours of safe and sick time and used 20 hours in a calendar year. He carries over 20 hours (40 - 20) to the following year, accrues 40 more hours, but does not use any safe and sick time that year. His safe and sick leave balance at the end of the year is 60 hours (20 + 40), but he may carry over only 40 hours into the next year.

Safe and sick time accrued by a domestic worker also carries over to the next calendar year. +6 RCNY 7-207.

Frontloading. Instead of having employees accrue safe and sick leave based on hours worked, an employer has the option to frontload safe and sick leave, meaning employees receive 40 hours of safe and sick leave at the start of the employer's calendar year. If an employer chooses to do this, it must be explained in the employer's safe and sick leave policy. When switching from an accrual system to a frontload system, an employer must pay out any unused accrued safe and sick leave at the end of the year in which the leave was accrued.

An employer that frontloads safe and sick leave is not required to allow employees to carry over unused accrued safe and sick time if it either:

  1. Pays the employee for the unused time, and frontloads 40 hours at the beginning of the new calendar year; or
  2. Frontloaded 40 hours at the beginning of the calendar year, and frontloads 40 hours at the beginning of the new calendar year.

For part-time employees, an employer may frontload the amount of safe and sick time the employees would accrue based on the hours they are anticipated to work. If the employer frontloads fewer than 40 hours, it must track the employees' hours worked and accrual of safe and sick time because they may work more hours than anticipated. If an employee does work more hours than anticipated, the employer must allow the employee to accrue one hour of leave for every 30 hours worked until the total amount of frontloaded plus accrued safe and sick time in a calendar year equals 40 hours. Employees who are frontloaded fewer than 40 hours in a calendar year must be allowed to use up to 40 hours of safe and sick leave in a calendar year if they have accrued it. An employer that frontloads fewer than 40 hours must allow employees to carry over up to 40 hours of unused safe and sick time into the new calendar year and must frontload the amount of time the employer expects the employee to earn in the new calendar.

Compensation. Safe and sick time is paid at the same hourly rate the employee would have earned at the time the employee uses safe and sick time, but no less than the minimum wage. If an employee uses his or her safe and sick time during scheduled hours that normally would have been overtime hours, the employer should still apply the employee's regular hourly rate of pay, and not the overtime rate. Special rules apply in special situations:

  • If an employee's salary is based on tips and gratuities, an employer must pay the employee at least the full minimum wage. Employees are not entitled to pay for lost tips during their use of safe and sick leave if their regular rate of pay is at least the full minimum wage.
  • For employees who are paid on a commission basis (whether base wage plus commission or commission only), the hourly rate of pay is the greater of the base wage or the minimum wage.
  • For employees who are paid a flat rate regardless of the number of hours actually worked, the hourly rate of pay is based on the most recent hourly rate paid to the employee for the applicable pay period. It is calculated by adding together the employee's total earnings, including tips, commissions and supplements, for the most recent workweek in which no safe and sick time or other leave was taken and dividing that sum by the number of hours worked during the workweek or 40 hours, whichever amount of hours is less.
  • If an employee works more than one job for the same employer or the employee's pay fluctuates for one job, the rate of pay is the rate the employee would have been paid during the period of safe and sick leave.
  • If an employee routinely works shifts of varying or indeterminate length (e.g., must work until the required work is completed), the employer should base the hours of safe and sick time used and paid on the hours worked by a replacement employee for the same shift. If there is no replacement employee, then hours should be based on the hours worked by the employee or a similarly situated employee in the same or a similar shift in the past.
  • An employer is not required to pay cash in lieu of supplements for safe and sick time used if remuneration for employment includes supplements (e.g., medical care, pension, life insurance, vacation and holiday pay). An employer that pays cash in lieu of supplements is still required to comply with the ESSTA.

+6 RCNY 7-208.

Safe and sick time must be paid no later than the payday for the next regular payroll period beginning after the safe and sick time was used by the employee. If the employer has asked for written documentation verifying the use of safe and sick leave, it need not pay until the employee complies. +6 RCNY 7-209.

The ESSTA prohibits an employer from paying employees for safe and sick time as it accrues, even if the employee agrees to it.

An employer is not required to pay an employee for accrued, unused safe and sick time upon separation of employment (e.g., retirement, resignation, termination). If an employer does not wish to pay out unused safe and sick time at separation, it should make this clear in its safe and sick leave policy.

Changes in employment. An employee who transfers to another division or location of the same employer in NYC is permitted to keep and use all accrued safe and sick time.

If an employee separates from employment and is rehired within six months of separation, the employee's previously accrued unused safe and sick time must be reinstated. The only exception to this is if the employee agreed to accept payment for the unused accrued time before separation. The accrued time may be used immediately if the employee had been employed 120 days prior to separation, or as soon as the employee has been employed 120 days total (counting days employed both before separation and upon rehire). An employee who is rehired more than six months after separation is considered a new employee; therefore, the employee must start accruing safe and sick leave from scratch and must be employed 120 days before being able to use it.

If an employee is rehired more than six months after separation, but within the same calendar year as the separation, then all hours worked in that calendar year must be counted in determining whether the employee has worked more than 80 hours and is eligible for safe and sick leave.

+NYC Administrative Code 20-913.

If an employer sells its business, or the business is otherwise acquired by another business, an employee may retain and use all accrued safe and sick time if he or she continues to work in NYC for the successor employer. If the successor employer has fewer than five employees and the former employer had five or more employees, the employee may use accrued paid safe and sick time until it runs out. A successor employer must provide employees with its written safe and sick time policies (including a policy that complies with the ESSTA) at the time of the sale or acquisition, or as soon as possible thereafter. +6 RCNY 7-210.

Effect of existing policies. An employer may not have to provide employees with paid safe and sick time under the ESSTA if:

  • The employer already provides five or more days of paid time off (PTO) or paid vacation or personal days; and
  • The PTO or paid leave policy allows employees to use the paid leave for the same reasons and under the same conditions as under the ESSTA.

While some employers may prefer to provide a PTO policy instead of separating out sick time and vacation time, employers should be very careful here since the ESSTA has specific requirements regarding eligibility, accrual, leave forfeiture, carryover, notice and more. So while an employer's policy may be generous and easier to administer, it must be comparable with the ESSTA's minimum requirements.

Employers that have a PTO or other leave policy must still adhere to the ESSTA's notice and recordkeeping requirements. See Employer Notice and Policy Requirements; Recordkeeping. The DCWP suggests attaching a memo that explains how employees may use their time off for safe and sick leave.

+NYC Administrative Code 20-913; +NYC Administrative Code 20-922.

Employee notice requirements. An employer may require an employee to provide reasonable notice of the need for safe and sick leave. If it does so, the employer must provide a written policy outlining its safe and sick leave notice requirements to employees; otherwise, it may not deny safe and sick time if an employee fails to provide proper notice.

In cases of foreseeable leave (i.e., expected or planned leave), an employee must give reasonable notice. An employer may require written notice, but may not require more than seven days' notice. Employers can require employees to sign a form if they want to use earned safe and sick leave for a foreseeable need and the DCWP provides a model Employee Notification of Intention to Use Earned Sick Leave form.

With respect to unforeseeable leave, notice should be provided as soon as practicable. An employer's policy should contain employee notification procedures, such as calling a designated phone number at which the employee can leave a message or following a uniform call-in procedure. Such procedures may not include requiring an employee to appear in person at work or to deliver any document to the employer prior to using safe and sick time.

+NYC Administrative Code 20-914; +6 RCNY 7-205.

Documentation. An employer may ask an employee to provide written verification that safe and sick time was used for a reason allowed under the law, regardless of the length of the leave. The DCWP provides a model verification form.

For absences of more than three consecutive workdays, an employer may require reasonable documentation that safe and sick time was used for an authorized reason. Workdays are the days or parts of days the employee would have worked had he or she not used safe and sick time. The documentation may confirm the need for the amount of safe and sick time used and confirm that leave was used for a purpose authorized by the law. An employer may also ask for a date on which the employee is cleared to return to work.

Reasonable documentation for sick time purposes includes medical documentation signed by a licensed health care provider (e.g., doctor, nurse, ER personnel) indicating the need for the amount of sick time taken. An employer's request for written verification or medical documentation cannot require the disclosure of the specific nature of the employee's or a family member's medical condition, except as required by law (e.g., employee is also covered under the FMLA).

An employee must be given at least seven days from the date he or she returns to work to submit medical documentation. The employee is responsible for the cost of such documentation not covered by insurance or any other benefit plan. If an employee provides proper documentation, the employer may not require the employee to obtain additional documentation (e.g., a second opinion).

Reasonable documentation for safe time purposes includes:

  • Documentation signed by an employee, agent or volunteer of a victim services organization; an attorney; a member of the clergy; or a medical or other professional service provider from whom the employee or a family member has sought assistance in addressing family offense matters, sex offenses, stalking or human trafficking and their effects;
  • A police or court record; or
  • A notarized letter from the employee explaining the need for such time.

An employer may not require that the documentation specify the details of the family offense matter, sexual offense, stalking or human trafficking. In addition, an employer may not require the disclosure of details relating to an employee's or a family member's status as a victim of family offenses, sexual offenses, stalking or human trafficking as a condition of providing safe time.

Information concerning the employee's or a family member's health or status (or perceived status) as a victim of family offenses, sexual offenses, stalking or human trafficking obtained solely for the purposes of utilizing leave under the ESSTA must be treated as confidential and may not be disclosed except:

  • By the employee;
  • With the employee's written permission; or
  • As required by law.

However, an employer may consider information provided in connection with a request for safe time in connection with a request for reasonable accommodation related to domestic violence, sexual offenses or stalking under the New York City Human Rights Law. +NYC Administrative Code 8-107.1.

Any verification or documentation requirements must be included in a written sick leave policy.

+NYC Administrative Code 20-914; +NYC Administrative Code 20-921; +6 RCNY 7-206.

Employer notice and policy requirements. Employees must receive a written notice of employee rights under the ESSTA at the time of hire that explains:

  • How safe and sick time is accrued;
  • How safe and sick time can be used;
  • What the employer's 12-month calendar year period is; and
  • The employee's right to be free from retaliation and how to file a complaint for any violation of the law.

ESSTA notices provided to new employees on and after the safe time amendments take effect (May 5, 2018) must inform employees of their right to safe time. Current employees who had already received notice of their right to sick time should have received notice of their right to safe time within 30 days of the effective date (i.e., by June 4, 2018).

The delivery method an employer chooses must reasonably ensure employees receive the notice, and must be consistent with any other applicable law or rule that specifically addresses a delivery method, such as:

  • Handing to each employee personally;
  • Sending by regular mail or email; or
  • Including in new hire materials given directly to the employee.

An employer is encouraged, but not required, to post the notice in an area accessible to employees; however, the employer may not post the notice instead of individually delivering the notice to employees.

It is recommended that an employer get employees to acknowledge their receipt of this notice.

The notice must be provided in both English and the employee's primary language, if it is the primary language of at least five percent of employees at the location and if it is available from the DCWP. For any notice not provided by the DCWP, an employer must provide the notice in English and any language the employer customarily uses to communicate with employees.

Written policy. An employer must maintain a written safe and sick time policy in a single writing. The DCWP has not provided guidance on what a single writing means. However, an employer should generally strive to address paid sick leave within a single document and in a manner that does not require excessive cross-references.

The policy must cover, at a minimum:

  • The employer's method of calculating safe and sick time:
    • If the employer frontloads time, it must specify the amount of frontloaded safe and sick time to be provided; or
    • If the employer does not frontload time, it must specify: 1) when accrual of safe and sick time starts; 2) the rate of accrual; and 3) the maximum number of hours that may be accrued in a calendar year;
  • The employer's policies regarding use of safe and sick time, including any limitations or conditions on the use of safe and sick time, such as:
    • Any requirement that an employee provide notice of the need to use safe and sick time and the procedures for doing so;
    • Any requirement that an employee provide written documentation or verification of the use of safe and sick time, and any consequences for failing to provide, or a delay in providing, such documentation or verification;
    • Any reasonable minimum increment or fixed period for the use of accrued safe and sick time;
    • Any policy on discipline for employee misuse of safe and sick time; and
    • A description of the ESSTA's confidentiality requirements;
  • The employer's policy regarding carryover of unused safe and sick time at the end of the calendar year; and
  • If the employer uses a term other than "safe/sick time" or "safe and sick time" to describe the leave provided by the employer to meet the ESSTA's requirements (e.g., paid time off, vacation time, personal days, days of rest), a statement that such leave may be used for any ESSTA purpose, without any condition prohibited by the ESSTA.

The policy must be provided in a manner that reasonably ensures that employees receive it (e.g., distribution to each employee personally, by regular mail or by email). Providing the notice of employee rights or other government writing does not satisfy this policy requirement.

The policy must be distributed:

  • When employment begins;
  • Within 14 days of the effective date of any policy changes; and
  • Upon an employee's request.

An employer that has not provided an employee with a copy of the written policy, along with any forms or procedures required by the employer related to the use of safe andd sick time, may not deny safe and sick time or payment of safe and sick time to the employee based on noncompliance with the policy.

+NYC Administrative Code 20-919; +6 RCNY 7-211.

Recordkeeping. An employer must keep records showing the employer's compliance with the ESSTA for at least three years. The DCWP is permitted to access such records upon appropriate notice (generally, 30 days' written notice) to the employer. Such records must include any policies required by the law, and the following information for each employee:

  • Name; address; phone number; employment start date(s); employment termination date(s), if any; pay rate; and whether the employee is exempt from state overtime requirements;
  • Hours worked, unless the employee is exempt from state overtime requirements and has a regular workweek of 40 hours or more;
  • Date and time of each instance of safe and sick time used and the amount paid for each instance;
  • Any change in the material terms of employment specific to the employee; and
  • Date the Notice of Rights was provided to the employee and proof of receipt.

An employer can choose to keep records electronically as long as it is able to produce the records in a manner in which they can be readily inspected or examined and as long as health information obtained solely for the purpose of the employee using sick leave can be kept confidential to the extent required by law.

An employer's failure to maintain, retain or produce a required record may be used against it if accused of an ESSTA violation. Such a failure creates a reasonable inference that a material fact alleged by the DCWP is true.

+NYC Administrative Code 20-920; +6 RCNY 7-212.

Retaliation. An employer may not retaliate against an employee for exercising or attempting to exercise any right guaranteed under the law, including:

  • Requesting or using safe and sick time;
  • Communicating with any person, including co-workers, about an alleged ESSTA violation;
  • Filing a good-faith complaint with the DCWP about an alleged ESSTA violation;
  • Participating in a court or administrative action regarding an alleged violation of the ESSTA; or
  • Informing another person about potential ESSTA rights.

+NYC Administrative Code 20-918; +6 RCNY 7-108.

Retaliatory acts may include:

  • Threats;
  • Discipline;
  • Termination;
  • Demotion;
  • Suspension;
  • Harassment;
  • Reduction in hours;
  • Other adverse employment actions (i.e., any act that is reasonably likely to deter an employee from exercising ESSTA rights, including informing another employer that the employee has engage in protected activities); or
  • Other acts by an employer, whether or not directly related to the employee's employment, that is reasonably likely to deter the employee (e.g., physically threatening an employee outside of the workplace).

An employer may not maintain or apply an absence control policy that counts ESSTA leave as an absence that may lead to or result in an adverse action.

The DCWP may establish a causal connection between an employee's exercise of rights and an employer's adverse employment action either:

  • Indirectly, such as with evidence that the employee's protected activity was followed closely by the adverse action; or
  • Directly, with evidence of the employer's retaliatory animus directed toward the employee.

The DCWP may establish retaliation by showing that retaliation was a motivating factor for an adverse action, even when other factors also motivated the action.

Abuse of safe and sick time. An employer has the right to take disciplinary action, up to and including termination, against an employee who uses safe and sick time for purposes other than those allowed by law. Indications of safe and sick leave abuse include, but are not limited to, a pattern of:

  • Using unscheduled safe and sick time on or adjacent to weekends, regularly scheduled days off, holidays, vacation days or pay days;
  • Taking scheduled safe and sick time on days when other leave has been denied; and
  • Taking safe and sick time on days when the employee is scheduled to work a shift or perform duties perceived as undesirable.

+NYC Administrative Code 20-914.

Interaction of leave laws. For employers with 50 or more employees, leave taken under the ESSTA may run concurrently with leave taken under the federal Family and Medical Leave Act (FMLA), where applicable. It is important to note that an employee may begin using accrued safe and sick leave 120 days after employment begins, but may not use FMLA leave until he or she has been working for the employer for at least 12 months.

In contrast with the FMLA, which requires an employee to provide 30 days' notice if the need for leave is foreseeable, the ESSTA requires only seven days' notice for foreseeable leave. However, in the event an employee provides notice of his or her need for leave in compliance with the ESSTA but not 30 days prior in compliance with the FMLA, the employer is still free to count the leave as FMLA leave if the other FMLA leave requirements are met.

In addition, leave granted under the ESSTA does not count toward an employer's obligation to grant leave under New York City's Fair Work Practices ordinances. Conversely, unpaid leave granted for a personal event under the Fair Work Practices ordinances does not count toward an employer's obligation to grant leave under the ESSTA.

Enforcement and penalties. The DCWP Office of Labor Policy and Standards is responsible for enforcing the ESSTA. The enforcing agency has the power to investigate ESSTA violations, resolve employee complaints and penalize an employer for violating the law. Penalties are imposed on a per employee basis.

An employee may not sue his or her employer in court for a violation of the ESSTA. The employee must file a complaint with the DCWP within two years of the date he or she became aware, or should have been aware, of the violation. The employer will need to submit a written response to the complaint within 30 days of written notification by the DCWP. The DCWP will investigate and attempt to resolve the complaint without a hearing. Otherwise, the DCWP may issue a Notice of Hearing and the complaint may be heard before an administrative tribunal judge.

If it is determined that an employer violated the ESSTA, penalties differ based on the conduct that caused the violation. For example:

  • Penalties for safe and sick time taken but not lawfully paid range from $250 to three times the employee's wages that should have been paid, whichever is greater;
  • Unlawfully denying an employee's safe and sick time request can result in a $500 penalty;
  • Conditioning the approval of an employee's leave request upon the employee searching for, or finding, a replacement worker or requiring an employee to make up the time that he or she used on a valid safe and sick leave can result in a $500 penalty;
  • An employer that violates the notice provisions of the ESSTA can be fined up to $50 for each employee who was not given the Notice of Employee Rights (which can prove costly for large NYC employers);
  • Retaliating against an employee for taking or requesting leave or exercising any right under the ESSTA, or interfering with any investigation, proceeding or hearing under the law, can result in a fine of $500 to $2,500 (variation in fines depends on whether the employee was terminated), along with full back pay and other relief deemed appropriate; and
  • Failing to respond to a notice of violation by the hearing date, or to provide requested information, may result in a $500 penalty, in addition to any other applicable penalties or remedies.

An employer that violates the ESSTA's retaliation or accrual and use provisions may also need to pay a civil fine ranging from $500 to $1,000 per violation (variation in fines depends on the timing and number of prior violations committed by the employer).

+NYC Administrative Code 20-924.

The DCWP has created resources for employers to help them comply with the law, including sample tools to keep track of hours worked and FAQs.

Suspension during public disasters. In the case of a public disaster, the mayor may, for the length of the disaster, suspend provisions of the ESSTA for businesses, corporations and other entities regulated by the public service commission. A public disaster includes events such as a fire, explosion, terrorist attack, severe weather conditions or other catastrophe that is declared a public emergency or disaster by the US president, the governor of New York State or the mayor of New York City. +NYC Administrative Code 20-917; +NYC Administrative Code 20-912.

New York City Pregnancy Accommodation

Under the New York City Human Rights Law, New York City employers with four or more employees must provide a reasonable accommodation to an employee due to pregnancy (including a healthy, nondisabling pregnancy), childbirth or a related medical condition if:

  • The employee requests an accommodation due to pregnancy, childbirth or a related medical condition; or
  • The employer knows about the need for accommodation due to pregnancy, childbirth or a related medical condition.

A leave of absence may be a form of reasonable accommodation. An employer may request medical documentation for leave requests, including time off for medical appointments, but not for the six- to eight-week presumptive recovery period following childbirth. Employees returning from leave must be reinstated to their original job or an equivalent position with equivalent pay and comparable seniority, retirement benefits and other fringe benefits.

An employer covered under the FMLA may be able to count this leave time against an employee's FMLA leave entitlement. However, an employer must be cautious in designating a leave of absence as FMLA leave, as a healthy, nondisabling pregnancy is not a qualifying reason for leave under the FMLA.

For more information on this law, see Disabilities (ADA): New York.

Westchester County Domestic Violence Leave

Under the Westchester County Human Rights Law, covered employers in Westchester County must reasonably accommodate a domestic violence victim unless doing so would cause an undue hardship on the employer's business. +Westchester County, New York Code of Ordinances Sec. 700.03 (8). See also Information Sheet on Discrimination in Employment. Reasonable accommodation may include a leave of absence and/or modification of the employee's work schedule. See Future Developments.

Westchester County Paid Sick Leave

Westchester County's Earned Sick Leave Law (ESLL), effective April 10, 2019, requires employers with five or more employees to provide eligible employees with paid sick leave and employers with fewer than five employees to provide unpaid sick leave.

For employers that have employees covered by a collective bargaining agreement (CBA), the law will take effect on the date the CBA expires.

Covered employers. The ESLL applies to any person, corporation, limited liability company or association employing any individual in any occupation, industry, trade, business or service, including the Westchester County government for its employees who are not covered by a collective bargaining agreement.

To determine employer size, all employees performing work for compensation on a full-time, part-time or temporary basis must be counted. If the number of employees fluctuates per week, the number of employees for the current calendar year may be based on the average number of employees who worked per week during the preceding calendar year. A calendar year means from January 1 to December 31 in any given year.

+Westchester County, New York Code of Ordinances Sec. 585.02; +Westchester County, New York Code of Ordinances Sec. 585.03.

Employee eligibility. An employee means any person who works in any employment within Westchester County for more than 80 hours in a calendar year.

Employees include those who perform work:

  • On a full-time or part-time basis;
  • In subsidized private sector; and
  • In not-for-profit employment programs.

An employee does not include:

  • Participants in a work-experience program established by a social services district;
  • Individuals working according to a work-study program; and
  • Employees compensated by or through qualified scholarships as defined in +26 USCS § 117.

+Westchester County, New York Code of Ordinances Sect. 585.02.

The ESLL does not apply to employees covered under a valid collective bargaining agreement (CBA) if:

  • The ESLL is expressly waived in the CBA; and
  • The CBA provides employees with a comparable benefit in the form of paid days off, which must be in the form of leave, compensation and/or other employee benefits (e.g., vacation, personal or sick time; holiday and Sunday time pay at premium rates).

+Westchester County, New York Code of Ordinances Sect. 585.04.

Qualifying reasons for leave. An eligible employee may use earned sick leave for any of the following reasons:

  • The employee's mental or physical illness, injury or health condition; need for medical diagnosis, care or treatment; and need for preventive medical care;
  • To care for a family member with a mental or physical illness, injury or health condition who needs medical diagnosis, care or treatment; or who needs preventive medical care;
  • The employee's or family member's presence in the community may jeopardize the health of others, as determined by public health authorities, because of exposure to a communicable disease, whether or not the employee or family member has actually contracted the disease; and
  • The employee's workplace or the employee's child's day care or elementary or secondary school closes by order of a public official because of a public health emergency.

Any employer that is willing to pay for the use of an employee's earned sick time may authorize an employee to use sick time if the employer reasonably determines that an employee's mental or physical illness, injury or health condition, or need for medical diagnosis, care or treatment, requires immediate attention.

+Westchester County, New York Code of Ordinances Sect. 585.06.

A family member includes the employee's:

  • Child, regardless of age (including a biological, adopted or foster child; a legal ward; a person to whom the employee stands in loco parentis; a person to whom the employee stood in loco parentis when that person was a minor; and a child of a spouse, domestic partner or household member);
  • Spouse;
  • Domestic partner;
  • Parent (including a biological, adoptive, foster or stepparent; a legal guardian; a person who stood in loco parentis when the employee was a minor; and parent of a spouse, domestic partner or household member);
  • Sibling;
  • Grandchild; and
  • Grandparent.

A household member means:

  • Persons related by consanguinity or affinity;
  • Persons legally married to or in a domestic partnership with one another;
  • Persons formerly married to or in a domestic partnership with one another, regardless of whether they still reside in the same household;
  • Persons who have a child in common, regardless of whether they have been married or domestic partners or have lived together at any time; and
  • Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship, regardless of whether they have lived together at any time.

+Westchester County, New York Code of Ordinances Sect. 585.02.

Accrual and use of leave. Employees accrue one hour of sick time for every 30 hours worked, up to 40 hours in a year. A year, other than a calendar year, means a regular and consecutive 12-month period as determined by the employer.

Accrual begins when employment begins or 90 days after the law takes effect (i.e., July 10, 2019), whichever is later.

Use of accrued sick time may be delayed until the employee has worked for the employer for 90 days.

Employees working for an employer with five or more employees may accrue and use up to 40 hours of paid sick time in a year. Employees working for an employer with fewer than five employees may accrue and use up to 40 hours of unpaid sick time in a year. Employers may select a higher limit.

Domestic workers accrue one hour of sick time for every seven days worked, which is in addition to the one day of rest provided by state law. All domestic workers employed by any employer, regardless of the number of domestic workers employed, may accrue and use up to 40 hours of paid sick time in a year, unless the employer selects a higher limit. A domestic worker means any domestic worker who works in Westchester County for more than 80 hours in a calendar year on a full-time or part-time basis.

Employees who only need to use a portion of a day of earned sick time may use a minimum of four hours. If the employee needs more time, then the employer must use the smallest increment that the employer's payroll system uses to account for absence or use of other time.

At its discretion, the employer may loan sick time to an employee in advance of accrual.

+Westchester County, New York Code of Ordinances Sec. 585.02; +Westchester County, New York Code of Ordinances Sec. 585.03; +Westchester County, New York Code of Ordinances Sec. 585.06.

Nothing in the ESLL should be construed to discourage or prohibit an employer from allowing employees to accrue sick time at a faster rate, or from providing more sick time, than required by law. +Westchester County, New York Code of Ordinances Sec. 585.04.

An employer may not require, as a condition of an employee using earned sick time, that the employee find a co-worker to work during the employee's absence. +Westchester County, New York Code of Ordinances Sect. 585.07.

Carryover. An employee may carry over unused earned sick time to the following year, but the maximum amount of sick leave for any given year remains at 40 hours. +Westchester County, New York Code of Ordinances Sec. 585.05.

Compensation. Paid sick time must be compensated at the same hourly rate as the employee normally earns during hours worked, but no less than the minimum wage. +Westchester County, New York Code of Ordinances Sec. 585.03.

Changes in employment. An employer is not required to pay an employee for unused accrued sick time upon the employee's termination, resignation, retirement or other separation from employment. +Westchester County, New York Code of Ordinances Sect. 585.06.

If an employee is rehired within nine months of separation by the same employer, previously accrued but unused sick time will be reinstated.

An employee, including domestic workers, who is transferred to a separate division, entity or location within Westchester County, but remains employed by the same employer, is entitled to all unused earned sick time accrued at the prior division, entity or location, if the prior division, entity or location is also located in Westchester County.

When one employer succeeds another, all employees of the original employer who remain employed by the successor employer are entitled to all the unused earned sick time accrued when employed by the original employer.

+Westchester County, New York Code of Ordinances Sect. 585.05.

Employee notice requirements. An employer must provide earned sick time upon an employee's request. The request may be made orally, in writing, by electronic means or by any other means acceptable to the employer. When possible, the request must include the expected duration of the absence.

For a foreseeable absence, the employee must make a good-faith effort to provide advance notice to the employer. The employee must also make a reasonable effort to schedule the use of leave in a manner that does not unduly disrupt the employer's operations.

An employer that requires notice of the need to use earned sick time must provide a written policy that contains the procedures for an employee to provide notice. If the employer does not provide such a policy, then it may not deny the use of earned sick time based on noncompliance with the policy.

+Westchester County, New York Code of Ordinances Sect. 585.07.

Documentation. An employer may require an employee to provide reasonable documentation that earned sick time was used for a qualifying reason for absences of more than three consecutive workdays. Documentation provided by the employee and signed by a health care professional (e.g., doctor, nurse, midwife, emergency room personnel) indicating that earned sick time is necessary is considered reasonable. The employer may not require a doctor to provide a note in violation of the Health Insurance Portability and Accountability Act (HIPAA). +Westchester County, New York Code of Ordinances Sect. 585.07.

Confidentiality. Health information about an employee or an employee's family member that is obtained solely for ESLL purposes must be treated as confidential. The information may not be disclosed except with the employee's written permission or unless required by law.

Any health or safety information that an employer has about an employee or a family member must be maintained on a separate form and in a separate file from other personnel information.

+Westchester County, New York Code of Ordinances Sect. 585.12.

Employer notice requirements. All employers must give employees a copy of the Earned Sick Leave Law and written notice of how the law applies to that employee when employment begins or within 90 days of the law's effective date (i.e., by July 10, 2019), whichever is later.

An employer must also display, in a conspicuous location accessible to employees, a copy of the ESLL and a poster in English, Spanish and any other language deemed appropriate by the county.

+Westchester County, New York Code of Ordinances Sect. 585.09.

Recordkeeping requirements. An employer must retain records for three years that clearly document employees' hours worked and earned sick time accrued and taken. An employer's failure to retain records may result in a rebuttable presumption of an ESLL violation. +Westchester County, New York Code of Ordinances Sect. 585.10.

Prohibited actions. The ESLL prohibits an employer from:

  • Interfering with, restraining or denying the exercise of, or the attempt to exercise, the right to use earned sick leave;
  • Including use of earned sick time as an absence that may lead to or result in discipline, termination, demotion or suspension; and
  • Taking retaliatory personnel action or discriminating against an employee because the employee has:
    • Used or requested to use earned sick time;
    • Filed a complaint regarding an employer's alleged ESLL violation;
    • Informed another employee of his or her ESLL rights; or
    • Participated or assisted in an ESLL investigation, proceeding or hearing.

A retaliatory personnel action means the denial of any ESLL right or:

  • Any threat;
  • Termination;
  • Suspension
  • Demotion;
  • Reduction of hours;
  • Reporting or threatening to report the employee's or a family member's suspected immigration or citizenship status to a federal, state or local agency; or
  • Any other adverse action against an employee for exercising any ESLL right, including sanctions against a recipient of public benefits.

An employer is presumed to have illegally retaliated if it takes an adverse action against an employee within 90 days of the employee filing a complaint regarding an alleged ESLL violation.

+Westchester County, New York Code of Ordinances Sect. 585.02; +Westchester County, New York Code of Ordinances Sect. 585.08.

Interaction with other laws and policies. The ESLL provides minimum requirements pertaining to paid sick leave and does not preempt, limit or otherwise affect the applicability of any other law, regulation, requirement or policy that provides greater accrual or use of earned sick time or that extends other protections to employees. +Westchester County, New York Code of Ordinances Sect. 585.13.

Other laws. Nothing in the ESLL should be construed to prevent, interfere with or conflict with any employee rights under the New York temporary disability benefits law and paid family leave law. +Westchester County, New York Code of Ordinances Sect. 585.13.

The ESLL contains a "reverse preemption" provision. The ESLL will become null and void on the day a state or federal law goes into effect that contains the same or substantially the same provisions or in the event that a state or federal agency issues regulations preempting the ESLL. +Westchester County, New York Code of Ordinances Sect. 585.15.

Other policies. Instead of calculating the accrual of sick leave, an employer has the option to provide employees with sick time and personal time that, if combined, equals 40 hours or more per calendar year, or the year as determined by the employer. The employer will be in compliance with the ESLL if the employee is permitted to take time as needed for sick leave, with no advance notice needed and no restrictions placed on use of earned sick time outside of those contained in the ESLL. +Westchester County, New York Code of Ordinances Sect. 585.04.

Personal time means paid leave for personal business, including use for:

  • Religious observance;
  • Attendance at funerals;
  • Necessary absences due to extraordinary weather conditions;
  • Attendance at conventions other than on required business;
  • Personal or family business appointments; and
  • Similar reasons.

+Westchester County, New York Code of Ordinances Sect. 585.02.

Collective bargaining agreements. Nothing in the law diminishes an employer's obligation to comply with any contract, collective bargaining agreement (CBA), employment benefit plan or other agreement providing more generous earned and/or paid sick time than required by the ESLL. +Westchester County, New York Code of Ordinances Sect. 585.04.

Enforcement and penalties. The Department of Weights and Measures - Consumer Protection enforces the ESLL. Complaints must be filed within one year after the occurrence of the alleged violation.

An employee may file a civil action in court without first filing a complaint with the Department. The civil action must be filed within one year after the occurrence of the alleged violation.

Violations of the ESLL may result in the following penalties:

  • The greater of three times an employee's wages or $250, for each instance sick time was taken but was unlawfully not paid;
  • $500, for each instance sick time was requested but was unlawfully denied by the employer and not taken by the employee or was unlawfully conditioned upon searching for or finding a replacement worker; and
  • Other appropriate relief, such as the full amount of unpaid earned sick time plus any actual damages suffered, reasonable attorney fees, administrative hearing costs, reinstatement and back pay.

+Westchester County, New York Code of Ordinances Sect. 585.11.

Willful violations of the notice and posting requirements may result in a civil fine of up to $500 for each separate offense. +Westchester County, New York Code of Ordinances Sect. 585.09.

Action steps. An employer should:

  • Review and revise, if necessary, paid sick or other leave policies and procedures to ensure they meet the law's requirements;
  • Update its employee handbook to notify employees of their rights under the law;
  • Display the required poster, and distribute the required notice;
  • Ensure timekeeping, payroll and benefits systems properly calculate and track accrued and used paid sick leave and track hours worked in Westchester County. If a third-party payroll processor is used, ensure it is aware of and complies with the law's requirements; and
  • Train supervisory and managerial employees, as well as HR and payroll personnel, on the law's requirements.

Future Developments

Westchester County Enacts Safe Time Leave Law

Westchester County's Safe Time Leave Law (STLL), effective October 30, 2019, provides paid leave to employees who are victims of domestic violence or human trafficking.

Covered employers. The STLL applies to any person, corporation, limited liability company or association employing any individual in any occupation, industry, trade, business or service, including the Westchester County government for its employees who are not covered by a collective bargaining agreement. Westchester County, New York Code of Ordinances Sec. 586.03.

Employee eligibility. An employee means any person who works in any employment within Westchester County for more than 90 days in a calendar year.

Employees include those who perform work:

  • On a full-time or part-time basis;
  • In subsidized private sector; and
  • In not-for-profit employment programs.

An employee does not include:

  • Participants in a work-experience program established by a social services district;
  • Individuals working according to a work-study program; and
  • Employees compensated by or through qualified scholarships as defined in +26 USCS § 117.

Westchester County, New York Code of Ordinances Sec. 586.03.

Leave rights. Eligible employees who are victims of domestic violence or human trafficking are entitled to take up to 40 hours of paid leave in any year (i.e., a regular and consecutive 12-month period, other than a calendar year, as determined by the employer) or calendar year to:

  • Attend or testify in criminal and civil court proceedings relating to domestic violence or human trafficking; and
  • Move to a safe location.

Safe time leave may be taken in full days and/or in increments.

Westchester County, New York Code of Ordinances Sec. 586.04.

An employer may not require, as a condition of the use of safe leave, that an employee find another employee to work during the leave time. Westchester County, New York Code of Ordinances Sec. 586.05.

Domestic violence means a pattern of violent or abusive behavior used by one person to gain or maintain control over another. Abusive behavior includes, but is not limited to, family offense matters.

A family offense matter includes acts or threats of various crimes (e.g., disorderly conduct, harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or blood circulation, assault, identity theft, grand larceny) between spouses or former spouses, between parent and child, or between members of the same family or household.

Members of the same family or household include:

  • Persons related by consanguinity or affinity;
  • Persons legally married or in a domestic partnership with one another;
  • Persons formally married or in a domestic partnership with one another, regardless of whether they still reside in the same household;
  • Persons who have a child in common, regardless of whether they have been married or domestic partners or have lived together at any time; and
  • Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship, regardless of whether they have lived together at any time.

Human trafficking involves the use of force, fraud or coercion to obtain some type of labor or commercial sex act.

Westchester County, New York Code of Ordinances Sec. 586.03.

Employee notice requirements. Safe time must be provided upon an employee's request. The request may be made orally, in writing, electronically or by any other means that is acceptable to the employer. When possible, the request must include the expected duration of the absence.

When the absence is foreseeable, the employee must make a good-faith effort to:

  • Provide the employer with advance notice; and
  • Make a reasonable effort to schedule the use of safe leave in a manner that does not unduly disrupt the employer's operations, when possible.

Westchester County, New York Code of Ordinances Sec. 586.05.

Documentation. An employer may require an employee to provide reasonable documentation that safe time leave was used for a qualifying reason, such as:

  • A court appearance ticket or subpoena;
  • A 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.

Westchester County, New York Code of Ordinances Sec. 586.05.

Confidentiality. Information about an employee or an employee's family member that is obtained solely for STLL purposes must be treated as confidential. The information may not be disclosed except with the employee's written permission or unless required by law.

Any health or safety information that an employer has about an employee or a family member must be maintained on a separate form and in a separate file from other personnel information.

Westchester County, New York Code of Ordinances Sec. 586.09.

Employer notice requirements. An employer must give each employee a copy of the Safe Time Leave Law and written notice of how the law applies to that employee when employment begins or within 90 days of the law's effective date (i.e., by January 28, 2020), whichever is later.

An employer must also display, in a conspicuous location accessible to employees, a copy of the STLL and a poster in English, Spanish and any other language deemed appropriate by the county.

Westchester County, New York Code of Ordinances Sec. 586.07.

Prohibited actions. The STLL prohibits an employer from:

  • Interfering with, restraining or denying the exercise of, or the attempt to exercise, the right to use safe time leave;
  • Including safe time leave as an absence that may lead to or result in discipline, termination, demotion or suspension; and
  • Taking retaliatory personnel action or discriminating against an employee because the employee has:
    • Used or requested to use safe leave;
    • Filed a complaint regarding an employer's alleged STLL violation;
    • Informed another employee of his or her STLL rights; or
    • Participated or assisted in an STLL investigation, proceeding or hearing.

A retaliatory personnel action means the denial of any STLL right or:

  • Any threat;
  • Termination;
  • Suspension
  • Demotion;
  • Reduction of hours;
  • Reporting or threatening to report the employee's or a family member's suspected immigration or citizenship status to a federal, state or local agency; or
  • Any other adverse action against an employee for exercising any STLL right, including sanctions against a recipient of public benefits.

An employer is presumed to have illegally retaliated if it takes an adverse action against an employee within 90 days of the employee filing a complaint regarding an alleged STLL violation.

Westchester County, New York Code of Ordinances Sec. 586.03; Westchester County, New York Code of Ordinances Sec. 586.06.

Interaction with other laws and policies. The STLL provides minimum requirements pertaining to safe leave and does not preempt, limit or otherwise affect the applicability of any other law, regulation, requirement or policy that provides greater safe time rights or that extends other protections to employees. In addition, nothing in the STLL should be construed to prevent, interfere with or conflict with any employee rights under any other law, including but not limited to the New York paid family leave law. Westchester County, New York Code of Ordinances Sec. 586.10.

Safe leave taken under the STLL is in addition to sick leave provided by Westchester County's Earned Sick Leave Law. Westchester County, New York Code of Ordinances Sec. 586.04.

The STLL contains a "reverse preemption" provision. The STLL will become null and void on the day a state or federal law goes into effect that contains the same or substantially the same provisions or in the event that a state or federal agency issues regulations preempting the STLL. Westchester County, New York Code of Ordinances Sec. 586.12.

Enforcement and penalties. The Department of Weights and Measures - Consumer Protection enforces the STLL. Complaints must be filed within one year after the occurrence of the alleged violation.

An employee may file a civil action in court without first filing a complaint with the Department. The civil action must be filed within one year after the occurrence of the alleged violation.

Violations of the STLL may result in the following penalties:

  • The greater of three times an employee's wages or $250, for each instance safe time leave was taken but was unlawfully not paid;
  • $500, for each instance safe leave was requested but was unlawfully denied by the employer and not taken by the employee or was unlawfully conditioned upon searching for or finding a replacement worker; and
  • Other appropriate relief, such as any actual damages suffered as the result of the STLL violation, reasonable attorney fees, administrative hearing costs, reinstatement and back pay.

Westchester County, New York Code of Ordinances Sec. 586.08.

Willful violations of the notice and posting requirements may result in a civil fine of up to $500 for each separate offense. Westchester County, New York Code of Ordinances Sec. 586.07.

Additional Resources

Employee Leaves > Other Leaves

Employee Leaves > FMLA: New York

Employee Leaves > USERRA: New York

Employee Leaves > Jury Duty: New York

New York Department of Labor

New York State Division of Human Rights

New York City Commission on Human Rights