Q: I am an employer in Westchester County. What do I need to know about the new paid sick leave law? If I have employees in both Westchester County and New York City, can I have one paid sick leave policy that covers everyone?
A: Westchester County recently enacted its Earned Sick Leave Law (“ESLL”), which goes into effect on April 10, 2019. While the law is similar in many aspects to New York City’s Earned Safe and Sick Time Act (“ESSTA”), there are some important differences. Employers who want one policy to cover employees in both locations (referred to below as a “dual policy”) can opt to offer the more generous benefit. Alternatively, employers can create a policy with carve-outs that are applicable to subsets of employees (referred to below as a “carve-out policy”). As explained below, the key differences between the laws are whether the law covers safe time as a permissible use of sick leave, and the definition of family member.
All Westchester County employers are subject to the ESLL – like the ESSTA, employers with five or more employees must provide paid sick time, while employers with fewer than five employees may but are not required to make the sick time paid. The ESLL covers any person employed in Westchester County for more than 80 hours in a calendar year.
Under both laws, employees earn one hour of sick leave for every 30 hours worked, up to a cap of 40 hours per year. Accrued/unused leave must be carried over to the following year.
Both laws require that employees begin earning sick leave at the beginning of employment, and allow employers to impose a 120-day waiting period after commencement of employment before sick leave can be used.
Both laws provide for the following uses of sick leave: (1) care or treatment of an employee’s mental or physical illness, injury or health condition, or preventative medical care; (2) care or treatment of an employee’s family member’s mental or physical illness, injury or health condition, or preventative medical care; and (3) closure of an employee’s place of business due to a public health emergency or an employee’s need to care for a child whose school or childcare provider has been closed due to a public health emergency. In addition, the ESSTA allows sick leave to be used for “safe time,” which is time associated with when an employee or an employee’s family member has been the victim of a family offense matter (crimes such as harassment, stalking, or assault between members of the same household), sexual offense (crimes such as sexual abuse or rape), stalking, or human trafficking. The ESLL does not require sick leave to be used for these purposes. Thus, a dual policy should include the use of sick leave for safe time, while a carve-out policy should only apply safe time to NYC employees
Both laws define “family member” broadly, to include an employee’s child (including the child of an employee’s spouse or domestic partner), spouse, domestic partner, parent (including the parent of an employee’s spouse or domestic partner), sibling, grandparent, grandchild, and any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship. Additionally, the ESLL includes the following as family members: 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, domestic partners, or have lived together at any time), and persons not related by blood or affinity who are or have been in an intimate relationship with the employee, regardless of whether they have lived together at any time. The ESLL does not define “intimate relationship,” though future guidance could address the issue. A dual policy should consider “family member” to include all of the above categories, while a carve-out policy should specify that the additional ESLL definitions only apply to Westchester employees.
Both laws allow employers to require reasonable documentation of the use of sick time if an employee is absent for more than three consecutive work days. The ESSTA also allows such documentation for absences of more than three consecutive work days for safe time.
Unlike the ESSTA, the ESLL allows a private right of action. Employees can file complaints with the Department of Weights and Measures – Consumer Protection (the Westchester agency that will enforce the law), or bring a civil lawsuit. Employees may recover either three times the wages that should have been paid for each instance of undercompensated sick leave taken, or $250, whichever is greater. Employees can also recover $500 for each instance where the employees have been unlawfully denied requested sick time. Recovery of back pay (if applicable) and reasonable attorneys’ fees also is available.
Both laws have notice requirements. The ESSTA requires that a written notice of employee rights be provided to employees upon commencement of employment. A form notice is available at http://www.nyc.gov. The ESLL requires that employers provide employees with a copy of the law and a written notice of rights by June 28, 2019, or at the commencement of employment, whichever is later. Both laws also have posting and three-year recordkeeping requirements.
To prepare for the new law, Westchester County employers should review their current sick leave policies and determine whether revisions are needed. If employers do not have sick leave policies, they should prepare to implement compliant policies by April 2019.