Employers with employees in New York State and New York City need to be aware of three upcoming ‎expansions to employee leave benefits. In New York City, employees are now entitled to temporary schedule ‎change leave, while employees in New York State soon may be entitled to Paid Family Leave benefits for ‎bereavement and organ donor leave.‎

NEW YORK CITY TEMPORARY SCHEDULE CHANGE LAW

Effective July 18, 2018, New York City (NYC) employers are required to grant to eligible employees two ‎temporary schedule changes each calendar year for qualifying "personal events." Each temporary schedule ‎change may be up to one business day per request, but an employer may permit an employee to use two ‎business days for a single request, in which case the employer need not grant a second request within that ‎calendar year. This new law is in addition to any leave that employers must provide under the New York City ‎Earned Safe and Sick Time Act (ESSTA).' Employees who are employed for more than 120 days and more than ‎‎80 hours during the calendar year may request a temporary schedule change for a "personal event." A ‎qualifying personal event includes:‎

• providing care for a minor child or an individual with a disability under the employee's care ‎who resides with the employee or is a member of the employee's family; 
• attending legal ‎ proceedings for subsistence benefits to which the employee, the employee's ‎family member, or an individual under the employee's care is a party; or ‎
• any circumstance that would qualify for use of safe or sick time leave under the recently ‎amended ESSTA.‎

Employees do not need to use or exhaust their available leave under ESSTA before requesting a schedule ‎change (even if the schedule change is for a personal event that qualifies for ESSTA leave). Unpaid leave ‎granted under this new enactment does not count toward an employee's entitlement to ESSTA leave. The ‎law provides examples of temporary schedule changes, including:‎

• using paid time off;‎
• working remotely;‎
• changing work hours;‎
• swapping shifts; or
• using short-term unpaid leave.‎

Although these options, however, are included in the new law as examples of acceptable accommodations, it ‎does not require that employers grant a particular requested accommodation, provided the employer offers ‎an accommodation that meets the employee's needs.‎

Procedure to Request Temporary Schedule Change

• An employee requesting a temporary schedule change must provide notice to the employer of ‎the need for a change as soon as he or she is aware of it, propose a specific schedule adjustment ‎‎(unless seeking unpaid leave), and inform the employer that the requested change is due to a ‎qualifying event (but the law does not specify that an employee must describe the qualifying ‎event). The initial notice need not be written, but the employee must submit a written request ‎as soon as practicable, no later than within two days after returning to work. The written notice ‎must state: (a) the date for which the schedule change was requested; and (b) that the request ‎was made for a qualifying personal event (again, the law does not specify that the employee ‎must describe the qualifying event).‎
• The employer must immediately respond to a temporary schedule change request. This initial ‎response need not be written, but a written response is required within 14 days of the ‎employee's written request. The written response must include: (a) whether the employer agrees ‎to the employee's requested temporary change or will provide the temporary change as leave ‎without pay (which does not constitute a denial); (b) if the request is denied, an explanation for the ‎denial; and (c) how many requests and business days the employee has left in the calendar year ‎‎(taking into account the employer's decision contained in the written response). If the employee does ‎not submit a written request, the employer does not need to respond in writing.‎

Once an employee exhausts his or her rights under this new law, the employer must still follow the steps outlined ‎above and has the option to either grant or deny the request.‎

Non-Eligible Employees

This law does not apply to employees covered by a collective bargaining agreement that waives coverage ‎under this law and addresses temporary scheduling changes, or employees of the movie, television, or live ‎entertainment industries unless their primary duty is the performance of manual or non-office work.‎

Penalties

This new law will be enforced by the New York City Department of Consumer Affairs, Office of Labor Policy ‎Standards (OPLS), which is responsible for receiving and investigating related complaints. The OPLS may award ‎damages for violations (including compensatory damages), fines up to $500 per violation, and an order directing ‎compliance. An employer who retaliates against an employee for requesting a temporary schedule change is ‎subject to additional penalties, including a $2,500 fine for terminating an employee, plus reinstatement and back ‎pay.‎

NEW YORK PAID FAMILY LEAVE BEREAVEMENT EXPANSION

The New York State legislature recently approved a measure to expand the New York Paid Family Leave law (PFL) to ‎employees experiencing the death of a family member.² If Governor Cuomo signs the bill, employees may start ‎utilizing PFL for bereavement leave beginning January 1, 2020. Unlike other eligibility criteria under PFL, ‎bereavement leave may be taken at any time after the death of a family member. If the employer requires it, the ‎death certificate of the employee's family member will satisfy proof for the need for the bereavement leave.‎

NEW YORK PAID FAMILY LEAVE LIVING DONOR PROTECTION ACT EXPANSION

The New York State legislature also recently passed "The Living Donor Protection Act"³ to grant ‎PFL benefits to employees for transplant, preparation, and recovery from surgeries related to ‎organ or tissue donations. The Act expands the definition of "serious health condition" to include ‎transplant, preparation, and recovery time. If signed into' law by Governor Cuomo, employees ‎may start utilizing PFL immediately for those serious health conditions.‎

TAKEAWAY

Employers should consider: (a) implementing a specific policy for Temporary Schedule Change Leave incorporating ‎the procedure it mandates and to explain its interplay with ESSTA; and (b) reviewing and updating their PFL and ‎ESSTA policies to ensure compliance with any new leave laws. In the meantime, employers may want to consider ‎carefully examining their attendance policies and staffing practices to ensure they can meet staffing needs when ‎employees utilize the various leave benefits under New York State and New York City laws.‎

NOTES
‎1.‎ The NYC Law is Int. No. 1399-A.‎
‎2.‎ The Bill is 8.8380-A (Funke)/A.10639-A (Morelle).‎
‎3.‎ The Bill is S.2496-B (Hannon)/A.297-C (Gunther).‎

Reprinted with permission from the October 2018 issue of Employee Benefit Plan Review.‎