Taking a page out of New York City’s book to address the estimated 36 percent of workers in Westchester County, New York, who lack paid sick leave benefits, in October 2018 the Westchester County Board of Legislators passed the Earned Sick Leave Law (ESLL). The law took effect for most employers on April 10, 2019. The ESLL requires Westchester County employers with five or more employees to provide eligible employees with up to 40 hours of paid sick time per calendar year, or per year as determined by the employers. Employers with at least one employee but fewer than five employees in Westchester County must provide up to 40 hours of unpaid earned sick time. (Special rules apply for domestic workers, however.)

On April 8, 2019, the Westchester County Human Rights Commission published a model Notice of Employee Rights under the ESLL, as well as guidance in the form of FAQs for employers and employees, and on April 10, 2019, issued revised versions of these documents. It is anticipated that the Commission will make further revisions and publish additional versions of these materials in the coming weeks.

Who Is Covered?

Employees, including part-time employees, and domestic workers employed within Westchester County for more than 80 hours in a calendar year are covered under the ESLL.

With respect to employees covered by a collective bargaining agreement (CBA) in effect on April 10, 2019, the ESLL will apply beginning on the stated expiration date in the CBA. Thereafter, the ESLL will exclude workers covered by a CBA if the CBA explicitly waives the ESLL’s provisions and provides for a “comparable benefit,” such as paid vacation time, personal time, or sick time, that can be used for purposes permitted under the ESLL.

Accrual and Use of Earned Sick Time

All employees except domestic workers will accrue a minimum of one hour of sick time for every 30 hours worked, up to a maximum of 40 hours in a year. Employers may provide more sick time or a faster rate of accrual than the minimum required or may “front load” earned sick time at the beginning of the year.

Moreover, an employer will be in compliance with the ESLL if the employer already provides annual sick time and personal time equal to 40 hours, provided that the employee is permitted to take such time without restrictions on use other than those contained in the ESLL. An employee’s ability to use earned sick time may be delayed until the employee has worked for the employer for 90 days.

When an employee uses earned sick time for more than three consecutive workdays, employers may require the employee to provide reasonable documentation that the earned sick time has been used for a purpose covered by the ESLL. An employer cannot otherwise require documentation for earned sick time absences or require a doctor or other healthcare professional to provide a note containing confidential and private health information.

In the event an employee requests to use less than a full day’s absence, the ESLL provides that the employee may use a minimum of four hours of earned sick time and, if more time is requested by the employee, the employer must allow the use of additional time in the smallest increments that its payroll system uses to account for absences or other time off.

An employee may carry over to the following year his or her unused earned sick time, though the maximum amount of sick leave an employee may take in any given year is 40 hours.

Special Rules for Domestic Workers

The ESLL states that all domestic workers, irrespective of the number of such workers that an employer employs, are entitled to accrue and use up to 40 hours of paid sick time per year. Domestic workers will accrue sick time at a rate of one hour for every seven days worked (which is in addition to the “day of rest” provided for in the New York State Labor Law).

Earned Sick Time: Covered Uses

Earned sick time may be used for:

• an employee’s mental or physical illness, injury, or health condition, need for medical diagnosis, care, or treatment, or need for preventive medical care;

• the care of a family member with a mental or physical illness, injury, or health condition, who needs medical diagnosis, care, or treatment, or who needs preventive medical care;

• the care for an employee or family member when it has been determined by the public health authorities that the employee’s or family member’s presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease, regardless of whether the employee or family member has actually contracted the communicable disease; and

• the closure of the employee’s place of business by order of a public official due to a public health emergency, or theclosure of a day care or elementary or secondary school attended by an employee’s child when such closure was due to a public health emergency.

“Family member” is broadly defined under the ESLL and includes not only an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, but also the child or parent of an employee’s spouse, domestic partner, or household member. It should be noted that the Commission’s April 10, 2019, version of the Notice of Employee Rights incorrectly includes “household member” under the definition of “family member.” “Household member” includes persons formerly married or in a domestic partnership, persons who have a child in common, and persons who are not related but who are or have been in an “intimate relationship.”

Requesting Earned Sick Time

An employee is entitled to use earned sick time on request, which can be made orally, in writing, by electronic means, or in any other manner acceptable to the employer. An employee must make a good-faith effort to provide advance notice when the use of earned sick time is foreseeable. Moreover, an employee must make a reasonable effort to schedule the use of earned sick time in a manner that does not unduly disrupt the employer’s operations.

To the extent that an employer requires notice of the need to use earned sick time, an employer must publish a written policy that contains procedures for employees to provide notice. An employer may not deny earned sick time to an employee based on noncompliance with its notice requirements when it has failed to provide a copy of its written policy to the employee.

Retaliation Prohibited

The ESLL prohibits employers from interfering with or restraining employees’ exercise or attempted exercise of their ESLL rights, or requests to use earned sick time. The law establishes a rebuttable presumption of unlawful retaliation whenever an employer takes an adverse action against an employee within 90 days of the employee’s filing of a complaint regarding an alleged violation of the ESLL.

Notice, Posting, and Recordkeeping Requirements

The ESLL requires that employers retain records clearly documenting the hours worked by employees and the earned sick time accrued and taken by employees for a period of three years. Any health or safety information regarding an employee or an employee’s family member must be maintained on a separate form and in a separate file from other personnel information.

Employers are required to give each employee a copy of the ESLL and written notice of how the law applies to that employee at the commencement of employment or within 90 days of April 10, 2019, whichever is later. Employers are also required to display copies of the ESLL and posters in English, Spanish, and any other language deemed appropriate by the County of Westchester in conspicuous locations. While the Westchester County Human Rights Commission recently published a model Notice of Employee Rights in English, it has not published the notice in any other language or published the poster required by the ESLL. It is anticipated that such additional documents will be published by the Commission later this month.

Enforcement

The Westchester County Department of Consumer Protection has been tasked with enforcing the ESLL and investigating complaints of noncompliance. Any such complaint must be filed within one year of the alleged violation.

Alternatively, an individual claiming to have been aggrieved by a violation of the ESLL may commence a civil court action within one year of the alleged violation.

Penalties for violations of the ESLL include money damages for unpaid wages, attorneys’ fees, costs, reinstatement, back pay, and fines.

Next Steps for Westchester Employers

Westchester County employers may want to consider initiating the following measures:

• reviewing current sick leave practices;

• examining sick leave and other policies concerning attendance and anti-retaliation for compliance with the ESLL;

• monitoring and reviewing materials published by the Westchester County Human Rights Commission to ensure compliance with the ESLL’s notice and posting requirements;

• training supervisory and managerial employees, as well as human resources professionals, on the new requirements of the law.