Westchester County Passes Separate Earned Sick and Safe Time Leave Laws

Westchester County, a Northern suburb of New York City home to IBM and a number of other large employers, has joined the growing list of jurisdictions guaranteeing the vast majority of employees paid sick and safe time leave. Initially, the Earned Sick Leave Law (“ESLL”) provides up to 40 hours of sick leave to eligible employees.

Employees started accruing sick leave under the ESLL on July 10, 2019. Additionally, Westchester County passed the Safe Time Leave Law (“STLL”), which becomes effective October 30, 2019, and entitles eligible employees to an additional 40 hours of paid safe time leave to deal with legal proceedings related to domestic violence or human trafficking.

Earned Sick Leave Law

Who Is A Covered Employee And What Are Employers Required To Provide?

Full-time and part-time employees who work in Westchester County for more than 80 hours in a calendar year are entitled to sick leave under the ESLL after their 90th day of employment. As set forth in the ESLL and the FAQs published by the Westchester County Human Rights Commission, employees are entitled to sick leave as follows (a copy of the FAQs can be found here):

Employers have the option of frontloading all 40 hours at the beginning of a calendar year so they do not have to track the hours employees have accrued throughout the year. Moreover, by frontloading all 40 hours, the employer does not have to track how many hours of unused time employees may carryover from one calendar year to the next. Alternatively, employees may carryover up to 40 hours of unused time from one calendar year to the next.

The ESLL does not apply to employees covered by a collective bargaining agreement if:

(i) Such provisions are expressly waived in the CBA; and

(ii) The CBA provides for comparable benefits.

What Is Sick Leave Under The ESLL?

Sick time may be used for:

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

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

• Any employer who is willing to pay for the use of an employee's earned sick time, may authorize an employee to utilize sick time if the employer reasonably determines that an employee's mental or physical illness, injury or health condition or an employee's need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition requires immediate attention;

• The care for an employee or family member when it has been determined by the public health authorities having jurisdiction 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 where or not the employee or family member has actually contracted the communicable disease; 

• The closure of the employee's place of business by order of a public official due to a public health emergency;

• The closure of a day care or elementary or secondary school attended by an employee's child where such closure was due to a public health emergency.

A family member is the covered employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent. A family member is also the child or parent of the covered employee’s spouse, domestic partner or a member of the covered employee’s household.

Under the ESLL, an employee may use a minimum of four hours of ESLL and, if more time is needed, then the smallest increment that the employer’s payroll system uses to account for absence or use of other time.

Are There Documentation Requirements?

If an employee takes more than three consecutive days of sick leave, an employer may require the employee to provide reasonable documentation that the leave is permitted under the ESLL. The ESLL expressly provides that documentation signed by a healthcare professional is considered reasonable documentation.

However, according to the FAQs published by the Westchester County Human Rights Commission, “a covered employer may not require the health-care provider to specify the medical reason for sick leave.”

Safe Time Leave Law

Who Is A Covered Employee And What Are Employers Required To Provide?

In addition to the 40 hours of leave under the ESLL, virtually all employees who work in Westchester County for more than 90 days in a calendar year are entitled to 40 hours of paid safe time leave, effective October 30, 2019.

Under the STLL, employees who are victims of domestic violence or victims of human trafficking are entitled to take up to 40 hours of paid safe time leave in any calendar year to:

(i) Attend/testify in criminal and/or civil court proceedings relating to domestic violence or human trafficking; and/or

(ii) To move to a safe location.

The law defines “domestic violence” to include “family offense matters,” which is defined in the ordinance (here) to encompass multiple criminal acts (including, but not limited to, harassment sexual abuse, stalking, criminal mischief, reckless endangerment, strangulation, attempted assault, identity theft and grand larceny) between spouses or former spouses, or between parent and child or between members of the same family or household.

Contrary to the ESLL, employees do not accrue safe time leave. Rather, eligible employees may use up to 40 hours of paid safe time leave per year as needed. Moreover, safe time leave can be used in increments at the employee’s discretion and the STLL prohibits employers from setting minimum increments of safe time leave.

Are There Documentation Requirements?

Employers may require an employee to provide reasonable documentation to ensure that safe time leave is being used for a permissible purpose. Under the STLL, documentation provided by the employee may include any one of the following:

(i) Court appearance ticket or subpoena;

(ii) Copy of a police report;

(iii) Affidavit from an attorney involved in the court proceeding relating to the issue of domestic violence and/or human trafficking; or

(iv) Affidavit from an authorized person from a reputable organization known to provide assistance to victims of domestic violence and victims of human trafficking.

What Are Protected Rights Under The ESLL And STLL?

The ESLL and STLL make it unlawful for an employer:

• To interfere with or deny the right to use sick leave or safe time.

• To include sick leave or safe time as an absence that may lead to or result in discipline, discharge, demotion or suspension.

• To take retaliatory personnel action or discriminate against an employee who has:
  (i) Requested to use or has used sick leave or safe time;
  (ii) Filed a complaint regarding an employer’s alleged violation of the ESLL or STLL; or
  (iii) Informed another employee of his or her rights under the ESLL or STLL.

Significantly, both the ESLL and STLL provide an employee with a rebuttable presumption of unlawful retaliatory personnel action whenever an employer takes adverse action against an employee within 90 days of the filing of a complaint regarding an employer’s alleged violation of the ESLL or STLL.

Are There Notice Requirements Under The ESLL And STLL?

When use of sick leave or safe time is foreseeable, the employee is required to make a good faith effort to provide advance notice and shall make a reasonable effort to schedule the sick time in a manner that doesn’t unduly disrupt the employer’s operations.

Are There Recordkeeping Requirements Under The ESLL And STLL?

Employers are required to maintain any health or safety information regarding an employee or an employee’s family member on a separate form and in a separate file from other personnel information.

Are There Posting Requirements?

Under the ESLL, at the commencement of employment, all employers shall provide their employees a copy of the ESLL (here) and a written notice of the law (here). Moreover, employers must display in a conspicuous location a copy of the ESLL and a poster in English, Spanish and any other language deemed appropriate by Westchester County (here).

Under the STLL, on or before January 28, 2020, all employers must provide employees a copy of the STLL (here) and a written notice of the law (this notice has yet to be published). Moreover, employers must display in a conspicuous location a copy of the STLL and a poster in English, Spanish and any other language deemed appropriate by the County (this posting has yet to be published).

Next Steps for Employers

Employers should review their employment policies and onboarding documents to ensure compliance with the ESLL and to prepare to comply with the STLL. Moreover, employers should train their managers with respect to these new laws to ensure that employees are being provided with their leave entitlements.