This spring, Westchester County extended statutory employment protections for workers facing sickness, caregiving obligations, domestic violence, or human traffic through passage of the Earned Sick Leave Law (the ESLL) and the Safe Time Leave Law (the STLL). 

Earned Sick Leave Law

On July 10, 2019, employees in Westchester County, New York began accruing sick leave under the ESLL.  The ESLL provides a floor for employee sick leave accrual and use, and a host of new requirements for employers that require immediate implementation.  Here’s what you need to know:

The Basics:

• All employees, except for domestic workers, accrue a minimum of one hour of sick time for every thirty hours worked.
• Employees at employers with five or more employees earn, and are entitled to use, up to forty hours of paid sick time per year.
• Employees at employers with fewer than five employees earn, and are entitled to use, up to forty hours of unpaid sick time per year.
• Employer size is calculated by including all full time, part-time, and temporary employees.  Where the employee count fluctuates, employers may use the average weekly employee count during the preceding calendar year.

Employer Obligations:

• Employers must keep and retain records documenting accrued and utilized leave time.  Failure to do so will result in a rebuttable presumption of a violation of the ESLL.
• Employers are required to provide employees with a copy of the ESLL, and written notice of how the ESLL applies to that employee.
• Employers must post a copy of the ESLL in English and Spanish in a location that is conspicuous and accessible.
• Violations of the posting and notice requirements are subject to a $500.00 fine, per each separate offense.

Earned Sick Leave Use and Conditions:

• Sick leave can be used to attend to:
  • an employee’s, or employee’s family member’s, mental or physical illness, condition, diagnosis, care or treatment;
  • an employee’s health condition requiring immediate attention, as reasonably determined by the employer, so long as the employer will pay for use the earned sick time; or
  • public health emergencies as determined by public officials, including:
    • an employee’s or employee’s family member’s contagious communicable disease,
    • closure of the employee’s office, or
    • closure of the employee’s child’s school or day care.
• An employer may delay an employee’s use of earned sick leave up to 90 days after beginning employment; in the alternative, and at its discretion, an employer may loan an employee earned sick time that has yet to accrue.
• Unused sick time rolls over from year to year, but an employer need not permit the employee to use more than 40 hours in a year;
• Employers are not required to compensate employees for unused, accrued sick time upon the end of an employee’s employment.

The ESLL provides baseline requirements for earned sick time, and does not preempt any law, contract, or policy where employees are entitled to greater accrual and use of earned sick time.  Additional information is available at the Westchester County Human Rights Commission’s website.

The Safe Time Leave Law

Effective October 30, 2019, the STLL provides victims of domestic violence or human trafficking with an additional forty hours a year of paid leave.  The committee recommending the passage of the law, “reaffirm[ed] that the physical and emotional injuries suffered by all employees, including victims of domestic violence and human trafficking, are provided for in the ESLL.”  The STLL was passed to cover issues specific to domestic violence and human trafficking not necessarily covered by the ESLL, including testifying in related court proceedings or moving to a new primary residence.

Domestic violence is defined as “a pattern of violent or abusive behavior used by one person to gain or maintain control over another.”  The statute enumerates a non-exhaustive list of criminal acts or threats thereof that constitute domestic violence.  Human trafficking is defined as “the use of force, fraud, or coercion to obtain some type of labor or commercial sex act.”

Safe time must be provided at the employee’s request.  Employees are required to (1) make a good faith effort to notify their employer in advance, if use of safe time is foreseeable, and (2) “make a reasonable effort” to schedule their absence in a way that does not disrupt their employer’s operations.  Employers are prohibited from requiring an employee to find a substitute employee during their use of safe time.  An employer may require “reasonable documentation” that safe time is being used for a covered purpose.  Such documentation may include a court ticket, police report, or an affidavit from an attorney or domestic violence victim advocate.

Where an employee discloses information “solely for the purposes of utilizing safe time,” employers must treat that information as confidential.  Employers may only disclose such information with the employee’s written consent or pursuant to applicable law.

Employers may not retaliate against employees for utilizing safe time.  Employers will be required to provide employees with a copy of the STLL and notice of how it applies to them by January 28, 2020 or at the commencement of employment.  Employers will also be required to display copies of the STLL, and posters in English and Spanish, in a conspicuous, accessible office location.  Violations of the notice and posting requirements can result in fines up to $500 per offense.  Further information for employers is outlined by Westchester County here.

As always, we are available to discuss the New York State and Westchester County laws, and assist employers with compliance and related issues.