United States: Attention Employers: Westchester's Earned Sick Leave Law Is Now In Effect

Last Updated: May 9 2019
Article by Cindy Schmitt Minniti, Mark S. Goldstein and Leora Grushka

Effective April 10, 2019, certain employers must comply with Westchester County's Earned Sick Leave Law (WESLL). Westchester County's Human Rights Commission recently released additional guidance about the new law, which can be found here.

Eligibility, accrual and carryover

Generally, under the law, full- and part-time Westchester County employees who work 80 hours or more during a calendar year are eligible to use sick leave for the care and treatment of themselves or a family member. The law requires employers with five or more employees to allow eligible employees to accrue one hour of paid sick leave per every 30 hours worked, with a cap of 40 hours of leave per calendar year. Employers with one to four employees must provide the same benefits, but the leave may be unpaid. WESLL leave begins accruing on the later of July 10, 2019, or the first date of employment.

Employers have the option of applying the WESLL or, alternatively, the employer can front-load sick and personal time equal to 40 hours or more, at the beginning of a calendar year. In addition, employees are permitted to carry over a maximum of 40 hours of unused sick leave at the end of the year.

Notice and posting requirement

Employers must provide employees with a copy of the WESLL and written notice of their rights to sick leave by (1) July 10, 2019, for employees whose employment commenced on or before July 10, 2019; and (2) on the first date of employment for employees who commence employment after July 10, 2019. Employers must also conspicuously display a copy of the WESLL and an official poster in English, Spanish and any other language deemed appropriate by Westchester County in a place or places accessible to all employees.

Covered leave

Eligible employees may use WESLL when:

  • The employee has a mental or physical illness, injury, or health condition; the employee needs to get a medical diagnosis, care, or treatment of their mental or physical illness, injury, or condition; the employee needs preventive medical care.
  • The employee must care for a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or who needs preventive medical care.
  • The business closes due to a public health emergency or the employee needs to care for a child whose school or childcare provider closed due to a public health emergency.

The law defines "family member" as the employee's child, spouse, domestic partner, parent, sibling, grandchild, or grandparent, or the child or parent of the employee's spouse, domestic partner, or a member of the employee's household. A "child" includes a biological, adopted, or foster child, a legal ward, or a person to whom the employee stands in loco parentis, regardless of age.

Notice and documentation

Where the employee's need for leave is foreseeable, an employer can require notice of an employee's intention to use WESLL. Where the need is unforeseeable, notice can be required as soon as practicable. If requiring notice, employers must provide the procedure an employee must follow to use WESLL in writing.

An employer can require an employee to provide documentation from a health care provider only if the employee uses more than three consecutive work days as WESLL. However, an employer may not require a health care provider to specify the medical reason for the leave.

Employer recordkeeping

Employers must keep records that clearly document the hours worked by employees, earned sick time accrued, and earned sick time used, for a period of three years. Failure to do so will result in a rebuttable presumption of a violation of WESLL.

No retaliation

Employers may not retaliate against an employee for using, asking about, informing their coworkers about, reporting suspected violations of, or participating in the investigation or enforcement of WESLL. Prohibited retaliatory acts include:

  • Denying sick leave;
  • Threatening to or actually discharging, suspending, demoting, or reducing hours;
  • Reporting or threatening to report an employee's actual or suspected citizenship or immigration status, or that of an employee's family member to a government agency;
  • Enacting a point system for using leave, including WESLL, as a demerit; or
  • Interfering with or punishing an employee for participating in an investigation, proceeding, or hearing.

Enforcement

Enforcement of WESLL will be overseen by the Westchester County Department of Consumer Protection. Failure to conspicuously display the required poster may result in a civil fine of $500.00 or less for each offense.

WESLL also provides employees with a private right of action for violations of the law, which can result in the employer paying:

  • The greater of three times the employee's wages or $250.00 for each instance of unlawfully uncompensated sick time taken by the employee;
  • $500.00 for each instance that an employee's request for sick time was unlawfully denied by the employer;
  • The full amount of any unpaid earned sick time, plus actual damages suffered as a result of the employer's violation;
  • Reasonable attorney's fees;
  • The cost of the administrative hearing; and
  • Other monetary or equitable relief as may be appropriate, including reinstatement to employment and back pay.

Employers should closely monitor this law, and any additional guidance issued by the county. In addition, employers should update their handbooks accordingly, and ensure that employees are receiving the requisite notice of this law. If you have any questions or concerns about this law, Reed Smith's experienced Labor and Employment Group is ready to speak with you. For more information on how to properly comply with the law, please contact your Reed Smith attorney.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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