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Westchester County Employers Obligated to Provide Safe Time Leave in ADDITION to Sick Time

  • May 24, 2019 12:05 PM
    Message # 7389827

    Westchester County passed yet another leave ordinance – this time requiring “safe time” leave.  The law takes effect October 30, 2019.  For Westchester employers, this marks two new leaves in under 12 months. 

    Requirements

    Employees who are victims of domestic violence or victims of human trafficking are entitled to take up to 40 hours of paid leave, in any calendar year, which can be utilized in full days and/or increments to:

    • Attend/testify in criminal and/or civil court proceedings related to domestic violence or human trafficking, or
    • Move to a safe location

    This safe leave is in ADDITION to the sick leave employees are entitled to under the Westchester County’s Earned Sick Leave Law. 

    Procedure

    Employers are required to provide safe time upon an employee’s request made orally, in writing, or by electronic means.  When possible, the employee should include the expected duration of the leave.

    If the leave is foreseeable, the law encourages the employee to make a good faith effort to provide notice to the employer in advance and to schedule the leave in a manner that does not unduly disrupt operations. 

    An employer cannot require an employee to find a replacement to use safe leave.  However, an employer can require documentation supporting the need for use of the leave.  This includes documentation of:

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

    No Retaliation

    The law includes an anti-retaliation provision which prohibits employers from taking an adverse action against an employee who uses or requests safe time. 

    Notice and Posting

    Employers are required to give all employees a copy of the law and a notice of how the law applies to them.  The Earned Sick Leave law has the same requirements and the County recently released a notice for sick leave.  Presumably, the County will release a similar notice for this newest law.

    Employers are also required to post a poster in Spanish and English regarding the new law. 

    Penalties

    The law provides for various penalties for non-compliance.  For instance, an employer may be required to pay the employee three times the wages they should have received when taking safe leave or $250 whichever is greater.  Alternatively, the employer may be required to pay $500 for each instance of unlawful denial of safe time leave.  The law also allows for the employee to recover actual damages, reasonable attorneys’ fees, the cost of any administrative hearing, reinstatement or backpay. 

    Confidentiality

    Information an employer obtains about an employee or employee’s family members for purposes of utilizing safe leave must be treated as confidential and not disclosed without the written permission of the affected employee, unless disclosure is required by law.

    Any health or safety information the employer has on the employee or employee’s family member under this law must be maintained on a separate form and in a separate file from other personnel information.  This requirement is similar to the rule for medical information under the Americans with Disabilities Act.

    Presumably, the County will release FAQs and additional guidance on this law as they did for the Earned Sick Leave law.  Stay tuned.

    Robert G. Brody is the Founder and Managing Member of Brody and Associates, LLC, a management-side Labor, Employment, and Benefits law firm in Westport, CT.  Co-author, Katherine M. Bogard is an associate at the Firm.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.  For more information about Brody and Associates, LLC please visit www.brodyandassociates.com. 


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