July 10, 2019, Notice Deadline and Posting Requirements
The deadline is fast approaching for businesses employing workers in Westchester County, New York, to provide eligible employees with a copy of the Earned Sick Leave Law and written notice of their sick leave rights. Employers must provide this information to covered workers by July 10, 2019 – also the date that sick leave accrual begins under the ordinance – or risk a fine of up to $500 per unnotified employee.
Additionally, the ordinance requires businesses with employees working in Westchester County to “display a copy of the Earned Sick Leave Law and a poster in English, Spanish and any other language deemed appropriate by the County of Westchester, in a conspicuous location accessible to the employee.”
The Westchester County Human Rights Commission has published an office poster in English that may be used to satisfy part of the posting requirement; however, neither the law nor the poster has yet been made available by the Commission in any other language. The Commission’s FAQs suggest that employers likely will not be held accountable for posting in other languages if a translated version of the law and poster are not yet on the Commission’s website. Nevertheless, it is advisable for employers with adequate resources to translate and post the law and sick leave poster in Spanish and any other primary language spoken by a critical mass of covered employees.
After July 10, 2019, employers must continue to provide written notice concerning the law to any newly hired (or newly eligible) employees performing work in Westchester County.
Employees’ Rights to Leave Under Earned Sick Leave Law
The Earned Sick Leave Law, which took effect April 10, 2019, covers employees who perform work in Westchester County for an employer for more than 80 hours per year. Unionized employees covered by a current collective bargaining agreement are excluded from the law’s coverage at least until expiration of the agreement.
The law mandates that covered workers accrue at least 1 hour of sick leave per 30 hours worked beginning on July 10, 2019. Employers may cap sick leave use and accrual at 40 hours of sick leave per year. Employees working for employers with at least 5 employees must receive paid leave; whereas, employees working for smaller employers can receive unpaid leave.
Employers are free to maintain more generous leave policies. The Earned Sick Leave Law establishes the minimum sick leave rights to which covered Westchester County workers are entitled.
Permitted Uses For Sick Leave
An eligible employee may use leave under the Earned Sick Leave Law for:
- his or her own mental or physical illness, injury, or health condition;
- his or her own need for medical diagnosis, treatment, or care (including preventive care);
- care of the employee’s family member with a mental or physical illness, injury, or health condition;
- care of the employee’s family member who needs medical diagnosis, treatment, or care (including preventive care);
- care for an employee or family member when it has been determined by the public health authorities that his or her presence in the community may jeopardize public health because of his or her exposure to a communicable disease; or
- a public health emergency, under certain specified circumstances.
A “family member” under the Earned Sick Leave Law includes an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent; and the child or parent of an employee’s spouse, domestic partner or household member.
Restrictions: Waiting Periods and Documentation
Employers are permitted to require employees to wait up to 90 days following hire to use accrued sick leave. However, if an employer prefers to forgo accrual calculations, employees can be provided with at least 40 hours of “up front” sick leave per year, so long as there are no waiting periods, advance notice requirements, or other restrictions imposed on employees’ ability to use such leave.
When an employee uses sick leave for more than 3 consecutive days, employers may require documentation signed by a health care professional indicating that the leave is necessary. However, employers cannot require that the documentation contain confidential or private health information.
Requests to Use Sick Leave
Employees can request sick leave orally, in writing, electronically, or in any other manner approved by the employer. Employees must make a good faith effort to give advance notice of sick leave that is foreseeable. However, employees cannot be denied leave for failing to provide advance notice unless the employer provided a copy of a written policy describing the advance notice requirements to the specific employee prior to the sick leave request.
While employees are obligated under the law to make a reasonable effort to schedule sick time so as to not unduly disrupt their employers’ operations, employees cannot be required to find someone else to work while the employee is absent.
Impacted businesses should work with their human resources personnel and legal counsel to review company policies and postings to ensure compliance with the Earned Sick Leave Law. Companies should consider incorporating the county’s published notices and posters into orientation paperwork and training for newly hired (or relocated) Westchester employees. Prudent employers will also keep an eye out for notices and posters that may be published by the Westchester County Human Rights Commission in languages other than English ahead of the impending July 10 deadline.