Westchester County Paid Safe Time Leave Goes Into Effect On October 31

Westchester County, New York employers, who recently were required to provide earned sick leave, will have to add paid “safe time” to their leave requirements starting this fall. Under Westchester County’s recently approved Safe Time Leave Law that becomes effective on Oct. 30, 2019. Employers in the affluent New York City suburb will be required to provide eligible employees with 40 hours of paid leave that can be used for reasons related to domestic violence or human trafficking. 

Leave under the new ordinance must be offered in addition to the paid time off that employers must provide under the “Earned Sick Leave Law” that became effective in April 2019, as well as any other existing paid or unpaid leave obligations, such as the federal Family and Medical Leave Act. 

County Executive George Latimer signed the safe time leave bill on May 3, after it received unanimous approval by the County Board of Legislators, according to CBS New York. 

CBS New York has also reported that the safe time leave law received the blessing of the business community. 

What’s Required Under the Westchester County Safe Time Leave Law

The new legislation is aimed at providing victims of domestic violence and human trafficking with time off so they can attend criminal and civil court proceedings and, if needed, to relocate to a safe location. There’s no provision that extends the leave benefit for use when caring for a family member facing similar issues. 

Covered employers include private employers as well as Westchester County Government who are not not subject to a collective bargaining agreement.  

The local law allows eligible employees to take up to 40 hours of paid leave in any year or calendar year. 

It’s worth noting that covered employees do not accrue leave based on hours worked as they do under the typical paid sick leave ordinance. Instead, eligible employees are entitled to take paid leave up to a certain number of total hours. 

Eligible employees are workers who have been employed in the county for more than 90 days in a calendar year on a full-time or part-time basis. Employees can take the leave in full days or smaller increments.

Regulations for Requesting Paid Safe Leave

Safe time leave requests can be made verbally, in writing, by electronic means or by any other means acceptable to the employers. When possible, the request should include the length of time that the employee expects to be on leave.

When the need for the leave is foreseeable, employees must make a good faith effect to provide notice to the employer and the leave should be used in a way that does not “unduly disrupt” the employer’s operations. The law does not specifically address required notice for unforeseeable absences.

Employers cannot require that employees find a substitute employee to work during the employee’s absence. 

Employers can require reasonable documentation for the leave. Documentation can include:

• a court appearance ticket or subpoena; 
• a copy of a police report; 
• an affidavit from an attorney involved in the court proceeding; 
• an affidavit from an authorized person from a reputable organization known to provide assistance to victims of domestic violence and victims of human trafficking.

Included No Retaliation Provisions

Employer retaliation is forbidden in several ways.

• Employers cannot interfere with, restrain or deny the right of employees to use safe time leave.
• Employers cannot retaliate or discriminate against employees for requesting or taking advantage of safe time leave. 
• Employers cannot use safe time leave as an absence that may lead to or result in discipline, discharge, demotion or suspension. 
• An employer cannot discriminate against or take retaliatory action against an employee who has filed a complaint about an employer’s alleged violation of the safe time law. 
• In addition, employers cannot retaliate against employees who have informed other employees about their rights under the safe time leave law. 

The timing of adverse employment actions and use of safe time leave can be a problem for employers if both actions occur too close together. The law says there will be a rebuttable presumption of unlawful retaliatory personnel action whenever an employer takes adverse actin within 90 day of the filing of a complaint regarding an employer’s alleged violation of the Safe Time Leave law. 

Notice and Posting Requirements

Employers must display a copy of the leave law in English, Spanish and any other language “deemed appropriate” by Westchester County in a “conspicuous location” that is accessible to the employee. Willful violation of the posting requirement is subject to a civil fine of not more than $500 for each offense. 

Enforcement and Penalties for Safe Time Law

Complaints must be filed within one year of alleged violations of the law. Once a complaint is received, the Department of Weights and Measures – Consumer Protection will investigate. If probable cause is found, the department will try to facilitate a resolution. 

If a resolution is not achieved, then a hearing will be held before a hearing officer who is not required to follow strict rules of evidence, according to the leave law. The hearing officer can dismiss the complaint if the allegations are not proven by a preponderance of the evidence, adjust the matter upon consent; or if a violation is found, impose penalties. 

Penalties can include the employer paying three times the wages that should have been paid or $250 – whichever is greater for each occurrence. The employer can be required to pay the employee $500 for each instance of leave requested by the employee but unlawfully denied by the employer and not taken by the employee or unlawfully conditioned upon finding another employee to work. 

Penalties can also include actual damages, reasonable attorneys’ fees, the cost of the administrative hearing and other relief such as reinstatement to employment and back pay. 

Employees can also file a claim in court as long as they do so within one year of the alleged violation. 

Confidentiality and Nondisclosure

Information about an employee’s use of the leave is confidential and cannot be disclosed except with the written permission of the affected employee. 

Health or safety information that the employer has about an employee or an employee’s family member must be kept on a separate form and in a separate file from other personnel information. 

Possible Preemption

The local law will be voided the same day that statewide or federal legislation goes into effect that includes the same or similar provisions. 

Last year, Westchester County approved a mandatory paid sick leave ordinance that went into effect on April 2019. That local law requires covered employers to provide to eligible employees up to 40 hours of paid sick leave a year, but the legislation did not include a “safe time” provision. 

This article is intended only for informational purposes. It is not a substitute for legal consultation. While we attempt to keep the information covered timely and accurate, laws and regulations are subject to change.