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New York City Strengthens and Makes Significant Amendments to the Earned Sick Time Act

Erin Lloyd - Wednesday, July 02, 2014



New York City Strengthens and Makes Significant Amendments to the Earned Sick Time Act

 

The New York City Council voted 46-5 this February to expand the scope of the New York City Earned Sick Time Act (“ESTA”) to require business with five or more employees to provide up to five paid sick days per year. When the law was passed last year, it originally imposed paid sick leave requirements only on businesses with fifteen or more employees.

The new amendments, signed into law by Mayor DiBlasio and effective April 1, 2014, extended application of the law to all businesses with five or more employees. Further, even businesses that are not required to provide paid sick leave are now required to offer their employees unpaid sick leave according to the same schedule.

In addition to expanding the category of covered employers, the ESTA increases the statute of limitations for filing a complaint from nine months to two years. The law also institutes a six-month grace period for businesses with 5-19 employees and those in manufacturing before they will be fined for non-compliance. Finally, the new amendments make significant changes in filing requirements, notice obligations, and enforcement powers.  


What Employers are Required to Provide Paid Sick Leave?

 

The ESTA requires all employers with five or more employees to provide paid sick leave. Employers with four or less employees must provide unpaid sick leave. The Act does not pertain employees who are covered by a collective bargaining agreement that waives the provisions of the ESTA and provides comparable benefits, work study programs, employees for the hours worked and compensated by or through qualified scholarships as defined in 26 U.S.C.117, independent contractors, and hourly professional employees.[1]

How Much Sick Leave are Employers Required to Provide?

 

 All employers, except with regards to domestic workers, [2] must provide a minimum of one hour of sick time for every thirty hours an employee works. The amount of sick time employers are required to provide is capped at forty hours in a calendar year. If the employer has five or more employees, the sick time is to be paid; if there are four or fewer employees, the sick time may be unpaid. The ESTA does not limit the amount of paid or unpaid sick leave employers are allowed to give; rather, it encourages employers to be more generous than the act requires.

I Already Give My Employees Paid/Unpaid Sick Leave; Do I Have to Give Them More?

 Generally, if an employer provides paid leave already in the form of sick days, personal days, vacation, or other paid time off, the act does not require additional leave if the amount currently provided is equal to or greater than what the ESTA mandates. Likewise, if an employer that is required to provide unpaid sick leave by the ESTA is already providing unpaid leave to his or her employees that meets the act’s requirements, he or she is not required to give additional unpaid leave.

 

Under What Circumstances May Employees Use their Sick Time?

 

Employees may use their sick time to be absent from work due to: 1) The employee’s own physical or mental illness; 2) the employee’s need to care for a family member’s physical or mental illness; [3] or 3) the closure of the employee’s place of business by order of a public official due to a public health emergency or the employee’s need to care for a child whose school or childcare provider has been closed by a public official due to a public health emergency.

Caring for an employee’s own illness, condition, or injury or that of a family member includes treatment, preventative treatment, care, obtaining a diagnosis, or simply being too ill to work. Employers may not require the disclosure of an employee’s or his or her family member’s medical condition as a condition of providing sick time.

Employers may require reasonable notice of the need to use sick time. When the need to use sick time is foreseeable, an employer may require up to seven days’ notice; when the need is not foreseeable, the employer may require notice as soon as is practicable. If an employee is absent for more than three days, an employer may require reasonable documentation that the use of sick time was authorized under the ESTA. For example, an employer may require a doctor’s note if an employee is out due to his or her own illness for more than three days. If an employee has inappropriately used sick days, the employer may take disciplinary action, including termination.

 

Are Employers Required to Provide Notice to Employees About the New Law?

 In short, yes. Employers must provide notice to all current employees via conspicuously placed posters. The notice must be in English and the primary language of the employee if the Department of Consumer Affairs has made the translation available.  Posters are available for download and printing on the DCA website in English and various translations: http://www.nyc.gov/html/dca/html/law/PaidSickLeave.shtml.  The specific posting requirements are also listed on the DCA’s website: http://www.nyc.gov/html/dca/html/law/PaidSickLeave_FAQs.shtml#NoticetoEmployees/.

 

What Happens if an Employer Fails to Provide Notice?


Employers who willfully violate the notice requirements of the ESTA will be subjected to a fine not exceeding fifty dollars for each employee to whom proper notice was not given.

Are Employers Required to Keep any Records by the ESTA?

Yes. Employers must retain documents that show the employer has complied with the ESTA’s requirements for three years and must make the records available upon request by the Department of Consumer Affairs.

Who has the Power to Enforce the ESTA?

The Commissioner of the Department of Consumer affairs has the authority to receive, inspect, and resolve complaints filed under the ESTA and may also conduct investigations on his or her own initiative. Additionally, the mayor may designate any other agency or department to enforce the ESTA, which will then have all the powers of the Commissioner.  

What Should an Employee Do if He or She Believes an Employer is Violating the ESTA?


Employees may file complaints with the Department of Consumer Affairs within two years from when he or she knew or should have known of the alleged violation. The Department will conduct an investigation and attempt to resolve the complaint through mediation. The identity of the complainant will be kept confidential unless it is necessary to resolve the issue or is required by law. To the extent that it is possible, the Department of Consumer Affairs will notify the complainant that it intends to disclose his or her identity prior to doing so.


What can the Department do when an Employer Violates the ESTA? 


If the Department of Consumer Affairs finds that an employer has violated the ESTA, the department may impose penalties and provide other relief to the aggrieved employee, such as:

  1. For each instance of sick time taken by an employee but unlawfully not compensated by the employer: three times the wages that should have been paid or two-hundred and fifty dollars, whichever is greater;
  1. For each instance of sick time requested by an employee but unlawfully denied by the employer and not taken by the employee or unlawfully conditioned upon searching for or finding a replacement worker, or for each instance an employer requires an employee to work additional hours without the mutual consent of such employer and employee to make up for the original hours during which such employee is absent pursuant to this chapter: five hundred dollars;
  1. For each instance of unlawful retaliation, not including discharge from employment: full compensation, including wages and benefits lost, five hundred dollars and equitable relief as appropriate; and
  1. For each instance of unlawful discharge from employment: full compensation, including wages and benefits lost, two thousand five hundred dollars, and equitable relief, including reinstatement, as appropriate.

Additionally, any entity or person found to be in violation of the provisions the ESTA will be forced to pay a civil penalty to the City of up to five hundred dollars for the first violation. For subsequent violations that occur within two years of any previous violation, the fine can be as high as seven hundred and fifty dollars for the second violation and one thousand dollars for each succeeding violation.

However, for businesses with fewer than 20 employees or businesses that are in the manufacturing sector, the department will not impose civil penalties for any violations that occur before October 1, 2014, though it may impose equitable relief. For businesses with more than 20 employees, the department will impose penalties, however the first violation will not serve as a predicate for imposing fines for subsequent violations if the first violation occurs prior to October 1, 2014. A second violation that occurs before October 1, 2014 will serve as a predicate for imposing fines for subsequent violations.


What Should Businesses Do to Comply with the ESTA?


All employers should:

        

  • •   Review any sick time policies that are in place;
  • •   Create procedures to document compliance with the ESTA;
  • •   Create procedures for implementing sick time policies, if necessary;
  • •   Contact the Department of Consumer Affairs with regards to official notice signs to post;
  • •   Train administrators, managers and supervisors on compliance with the ESTA and ensure that all employees are receiving their mandated sick time.
  • •   Create procedures for informing all employees, present and future, of their rights under the ESTA, including reviewing and updating Employee Manuals and other materials provided to new-hires.
  • Conclusion
  • Overall, the purpose of the ESTA is to create a right to sick leave for all employees and to encourage employers to provide sick leave that is more generous than the act requires. While the goals and purposes of the act are relatively straightforward, the details as they apply to a specific business can be tricky, and an employer should consult with his or her attorney to make sure he or she is in compliance with the ESTA.

 

For more information, employees and employers can contact us here. (include a link to “Contact Us” page).

 

 



[1] The act defines hourly professional employees as one “(i) who is professionally licensed by the New York State Education Department, Office of Professions, under the direction of the New York state board of regents under Education Law sections 6732, 7902 or 8202, (ii) who calls in for work assignments at will determining his or her own work schedule with the ability to reject or accept any assignment referred to them and (iii) who is paid an average hourly wage which is at least four times the federal minimum wage for hours worked during the calendar year.

[2] For more information regarding how ESTA applies to domestic workers, see the Department of Consumer Affairs’ website: http://www.nyc.gov/html/dca/html/law/PaidSickLeave_DomesticWorkers.shtml.

[3] Family member is defined as the employee’s child, spouse, domestic partner, parent, sibling, grandchild, grandparent, or the child or parent of the employee’s spouse or domestic partner.

New York City Expands Human Rights Law to Protect Pregnant Women from Employment Discrimination

Erin Lloyd - Wednesday, July 02, 2014

The New York City Council voted unanimously this Fall to amend and expand the New York City Human Rights Law (“NYCHRL”) to require most New York City employers to provide reasonable accommodations to pregnant workers and to workers with pregnancy and childbirth-related medical conditions.  


The new law, which goes into effect January 30, 2014, also prohibits employers from discriminating against employees in the workplace on the basis of pregnancy, childbirth, or a related medical condition.

Although the NYCHRL already prohibits discrimination on the basis of gender or disability, and pregnancy has long been considered a “disability” in many circumstances under the law, the amendment is a significant development because employees are no longer required to make any showing that the pregnancy should qualify as a disability under federal, state or city law.  Rather, all pregnant employees enjoy the protections of the law, where applicable.


What Employers Are Covered by the Expanded Protections?


The NYCHRL applies to all employers in New York City, including employment agencies, who employ four or more people.  Independent contractors will generally be included as “employees” for purposes of this law, although there are some exceptions.  

What Conduct is Prohibited by the Expanded NYCHRL?

The newly enacted protections require covered employers to provide a reasonable accommodation to an employee who asks for the accommodation due to her pregnancy, childbirth, or a related medical condition.  

The pregnancy, childbirth, or related medical condition must be known to the employer or “should have been known” by the employer.  This phrase means that an employer cannot avoid providing a reasonable accommodation simply because the employee did not expressly tell the employer that the accommodation is related to a protected pregnancy-related condition if the employer should have known of the condition.  For example, if an employee had told her employer that she was pregnant, and in the following weeks asked the employer if she could be permitted to shift her work schedule to a later arrival and departure because she was feeling sick in the mornings, a court would likely find that the employer “should have known” this was related to morning-sickness, one of the pregnancy-related conditions commonly requiring accommodation from employers.

What is a “Reasonable Accommodation” under the Law?


Under the NYCHRL, “reasonable accommodation” is defined as “an accommodation that shall not cause undue hardship in the conduct of the [business].” The employee must still be able to perform the “essential requisites” of the job, with only some accommodation.

Specific examples of accommodations that would be considered reasonable under the law include, but are not limited to:

Additional bathroom breaks;
Leave for a period of disability related to childbirth;
Breaks to allow for increased water intake;
Periodic rest for employees who must stand for long periods; and
Assistance with manual labor.

Other reasonable accommodations may be assigning some workers to “light duty” or providing for a procedure for a pregnant employee to obtain assistance with physically challenging work, allowing for time off for medical appointments, or altering work hours to accommodate “morning sickness” where such alteration would not cause undue hardship.

A major concern recent mothers may have is that the new law does not directly address their ability to pump breast milk while on the job, but rest assured that this is protected activity.  New York State Labor Law Section 206-c already requires that employers “provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day . . . to express breast milk for her nursing child for up to three years following child birth.” Employers must make “reasonable efforts” to provide a space in the office, or nearby, in which employees can pump breast milk. The statute also prohibits employers from discriminating against employees who express breast milk at the workplace and applies to all employers, public and private, no matter how large or small. 

How do Employers Determine if an Accommodation Would Cause “Undue Hardship”?

Employers must carefully evaluate each request for an accommodation, taking into account the nature of the employee’s position and work, the potential length of the accommodation, and the realistic affect the accommodation will have on the workplace.  

It is not appropriate for employers to consider the individual employee’s work history, whether the employer “values” the employee over other employees, or other such unrelated factors.  

The following are appropriate factors to consider in the face of any request for accommodation:

The overall financial resources of the employer;
The effect of the accommodation on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; 
The nature and cost of the accommodation;
The number of persons employed at the facility;
The overall financial resources of the facility or facilities involved in the request;
The overall size of the business of the employer with respect to the number of employees and the number, type and location of its facilities;
The type of operation of the covered entity, including composition, structure, and functions of the workforce; and
The geographic separateness, administrative or fiscal relationship of the facility in question.

In addition, if an employee could not satisfy the “essential requisites” of the job, even with a reasonable accommodation, the employer may be excused from providing the accommodation even if it would be considered “reasonable” under other circumstances. 

While the law provides for the above exceptions, it is strongly recommended that employers who are uncertain whether it is able to deny a request for reasonable accommodations seek out legal advice to ensure that the response is within the law’s requirements.


Are Employers Required to Notify Employees About the New Changes?

In short, yes.

The New York City Commission on Human Rights (the “Commission”) is expected to determine the form and manner of the notice, but employers will be required to provide employees with written notice regarding their right to be free from discrimination related to pregnancy, childbirth or related medical conditions.  This notice must be provided to all new employees upon commencement of employment, as well as to existing employees within 120 days after the effective date of the new law.

The new law also strongly suggests that employers should post the notice conspicuously in the workplace.

The Commission is expected to develop courses of instruction and other public education efforts to help educate employers, employees, and job applicants about their rights and responsibilities under the new law.

Aren’t There Other Laws that Prohibit Pregnancy Discrimination?  What Makes This Law Different?


Existing Federal laws, such as the Pregnancy Discrimination Act (“PDA”) and Americans with Disabilities Act (“ADA”), as well as the New York State Human Rights Law, do not require reasonable accommodations based on pregnancy absent an accompanying disability.   

The PDA prohibits employers from discriminating on the basis of pregnancy itself.  Further, the ADA only applies where complications arising from or related to a pregnancy causes a physical impairment that rises to the level set forth in the law, which is significantly more onerous for an employee to demonstrate.  Only then will the ADA require the employer to provide reasonable accommodations.

By expressly requiring employers to provide reasonable accommodations to pregnant women and those with medical conditions related to pregnancy and childbirth, the new NYCHRL does not make pregnancy a disability or require employees to demonstrate that they suffer from a disability, but rather allows reasonable accommodations in the same manner as those required as a result of a disability.


What do I do if my Employer Violates the Law?


An employee who suffers discrimination in violation of the law or is denied reasonable accommodations covered by the law has two options: she can either file a complaint with the Commission, who will investigate and determine what it believes are the appropriate actions to take, ranging from forced re-hiring to back wages; or the employee can file a civil action in court seeking damages related to the employment action.

Under either circumstance, having the advice and assistance of legal counsel can both alleviate the burden on employees and also increase the chances of recovering against an employer who has acted unlawfully.  


As an Employer, What Should I do to Prepare for Implementation of the Law?


Employers who are covered by the law should immediately take steps to review standard policies and practices to ensure that they are or will be in compliance with the amended NYCHRL.  It would be wise for employers to:

Begin creating a procedure for notifying existing employees of the change in the law;
Monitor the Commission’s website regularly to see if it has released a model written notice to be distributed to employees, and if it has not been released before January 30, 2014, prepare its own notice to be distributed to employees;
Review and update polices and procedures for 1) employees requesting reasonable accommodations; and 2) how such requests are reviewed internally.
Train managers on how they should handle accommodation requests and other employment issues related to pregnancy, ensuring that managers are aware that some requests for “reasonable accommodation” require a decision on the spot and know how to handle them.

In addition to reviewing your company’s general policies and practices, employers should review the status and requests of all employees that they know are pregnant or who were recently pregnant, and ensure that reasonable accommodations are provided to such employees, to the extent they are not already being provided.

For more information, employees and employers can contact us here


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