On October 1, Westchester County, NY legislatures copied New York City and enacted The Earned Sick Leave Law. The new law only gives employers 6 months to be compliant. It starts on April 10, 2019. The county still needs to clarify several aspects of the new law, but that isn’t likely to happen until after the new year.
Employees will be able to earn 1 hour of sick leave for every 30 hours worked. Employees can earn up to 40 hours a year.
The law las one interesting provision. If a state or federal law is passed with the same or substantially the same provisions, the law will become “null and void.” The “reverse preemption” is the first of its kind to be included in a local sick leave law. Usually, states pass laws that preempt earlier local laws.
Who is Covered under the law
The law covers any employee who works inside Westchester County at least 80 hours in a year. This includes part-time, full-time, temporary, and seasonal workers. The law also covers domestic workers. Westchester County employees are also covered.
- Any employee who works at least 80 hours a year in Westchester County is covered by the law.
- Domestic Workers
- Part-time, Full-time, Temporary, and Seasonal workers
Employers Required to Provide Sick Leave
Employers with 5 or more employees are covered. Plus, any employer with at least 1 domestic worker is also required to provide sick leave for their domestic worker. This means that the law covers more than just legal businesses.
It can cover families or individuals who aren’t always scanning employment laws. It also means that these individuals may not realize they are under obligations under the law and are at a higher risk of penalties.
Exclusions (exemptions) to The Earned Sick Leave Law
Employees who are exempt from the law include independent contractors, work-study students, and other government employees.
- Independent contractors
- Work-study students
- Government employees
Allowable Uses for Earned Sick and Safe Leave
The new law will allow employees to take sick leave for themselves or for a loved one. One difference between the Westchester County Law and the original NYC law is that the NYC law was amended to include safety provisions. Now, victims of domestic violence, stalking, and sexual assault is allowed to take sick time in NYC.
Employees can use sick leave for a physical or mental health condition, including illness, injury or for preventative care. They can use sick leave when the employee or their family has a communicable disease and a public health official has determined that their presence in the community would jeopardize public health. It is also available if the employee’s place of work is closed, or a family member’s school or daycare is closed due to a public health emergency.
- Physical or mental illness, injury, or health condition
- Includes preventative care
- For a public health emergency: Child’s school or employee’s place of work is closed due to the emergency
- For a communicable disease where the individual jeopardizes public health
- Includes the employee and their family members
Union employees can be exempted from the law in a collective bargaining agreement if the agreement provides more generous sick leave. Additionally, union application of the new sick leave law starts on the date that the current bargaining agreement expires.
Family Member Definitions
The law covers nearly any family member. It includes parents, children, spouses or domestic partners. It also covers siblings, grandparents, and grandchildren. In addition, it includes those related by blood or affinity, those with a child in common, those who have been in an intimate relationship.
It is important to note that individuals who share a child do not have to have ever lived together, have been married, or ever been domestic partners. Relationships that have been intimate also never have to have lived together.
- Spouse and domestic partner
- Grandchildren and grandparents
- Any blood or affinity relationship
- Anyone who shares a child
- Anyone with an intimate relationship (the law doesn’t define intimate)
Accrual of Safe and Sick Time
Employees accrue 1 hour of sick leave for every 30 hours worked. They can accrue up to 40 hours of sick leave each year.
Domestic workers accrue 1 hour for every 7 days worked.
Probationary Period before Employees Can Use Sick Leave
New employees have a 90 day grace period before they can use sick leave. However, sick leave starts accruing on the first date of employment.
Sick Leave Bank and Minimum Usage
Employees can roll unused sick leave to the following year. However, the law is unclear about how much can be rolled. It also states that leave carries over “provided that the maximum amount of sick leave for any given year remains at forty (40) hours.”
Front Loading of Sick Leave Time
It appears that the law does not allow front loading as it is currently written.
Coordinating with Paid Time Off Policies
The law allows for a combination of sick leave and personal time that equals 40 hours in a year. Any time given must be allowed to be used for the provisions in the law. There are several vague requirements around this so stay tuned for an update to this part of the law.
Reasonable Documentation and Notification of Sick Leave Usage
Employers can require employees to provide proof that sick leave was used in accordance with the law if the employee takes 3 or more consecutive days off.
Employees should provide proper notice of intent to take sick leave. They should also make an effort to take sick leave when it does not unduly disrupt the employer’s operations.
Anti Retaliation Clause Under the Law
Employers cannot retaliate against any employee for the use of sick leave. Employers cannot interfere with, restrain, or deny the use of sick leave or the attempt to use sick leave. Employees who use or attempt to use sick leave cannot be disciplined for use of sick leave. They cannot be discharged, suspended, demoted or retaliated or discriminated against in any manner. Employees cannot be required to find a replacement when they use sick leave.
Fines and Remedies provided by the Sick and Safe Time Ordinance
Notification and Records
Employers must notify employees of the law within 90 days of its effective date. New employees must be notified when they start employment. Businesses must also post a copy of the notice of the law in a conspicuous place for employees to read. Notices must be in Spanish and English.
Employers must notify employees if they require any advanced notice of sick leave use. Otherwise, employers cannot require notice. (This should be put in the employee handbook)
The law requires 3 years worth of records to be kept by the employer. However, New York State already requires 6 years of record be maintained.
- Hours worked by employees
- Sick leave accrual
- Sick leave use
Let SwipeClock Help
Businesses who have employees in Westchester, NYC and a growing list of cities and counties may have to comply with multiple conflicting city ordinances defining sick leave accrual and usage laws.
Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Medical Leave Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.
Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according to the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
SwipeClock is a leading provider of simple and affordable integrated workforce management services that provide intuitive employee access to integrated automated time and attendance, scheduling, leave management, HR dashboards, and other HR resources.
The company’s cloud products (WorkforceHUB, TimeWorksPlus, TimeSimplicity) and hardware clocks (TimeWorksTouch and TimeWorksTUFF and others) enable employers to manage their most important and expensive asset—employees—by transforming labor from a cost of doing business to a competitive advantage.
SwipeClock’s workforce management solutions are sold through over 900 partners that empower more than 30,000 businesses to lower labor costs, comply with regulatory mandates, and maximize profits.
Penalties under the law
Employees who violate the law will be required to pay 3 times the damages with a minimum fine of $250 every time sick leave was taken, but not paid. They must pay $500 for every time sick leave was requested and not provided. That also includes any instances where the employee was required to find a replacement. Any additional damages must also be paid, including attorney’s fees. In the case of retaliation, the employee must be reinstated and paid back wages and equitable relief. The failure for businesses to post will result in a $500 fine.
- $250 or 3x the damages for unpaid sick leave
- $500 for denial of sick leave use
- $500 for requiring the employee to find a replacement
- Damages and equitable relief
- Attorney fees
- Reinstatement of job
- $500 for failure to post sick leave notice
Written by Annemaria Duran. Last updated on November 13, 2018