United States: New Westchester County Sick Leave Law To Take Effect April 10, 2019

Effective April 10, Westchester County employers will join NYC employers (as well as those in several other states and cities) in being required to comply with a mandatory sick leave law. Below are some Q&As we've prepared highlighting some of the nuances of this new law:

  • Who's covered? With some limited exceptions, employees (including full-time, part-time and domestic workers) who work in Westchester County for more than 80 hours per year are covered. Workers covered by a collective bargaining agreement (CBA) are exempt if the benefits of the law are expressly waived and the CBA provides a comparable benefit in the form of paid days off.
  • How much time do employees get, and how does it accrue? Eligible non-domestic employees are entitled to one hour of leave for every 30 hours worked, up to 40 hours per year (unless the employer sets a higher limit), which must be paid if they work for employers with at least five employees. Leave accrues beginning on the later of 90 days after the effective date of the law or the beginning of employment. Employers can also front-load 40 hours of combined sick and personal time at the beginning of each year to allow employees to use leave for sick time with no advance notice and with no restrictions on use other than as contained in the law.
  • A Is carryover required? Unused sick time can be carried over to the following year, subject to the 40- hour annual usage cap. Carryover is not required if the employer front-loads leave annually, since the carryover of time should not allow the employee to exceed 40 hours of sick time per year.
  • What about employees who are transferred or reinstated? Employees who are transferred to another unit or division of the same employer in Westchester or employed by a successor employer retain their accrued leave and ability to use it. Employers must reinstate previously accrued unused leave for employees who are rehired within nine months of an employment separation.
  • A Are there limitations of leave usage? Employers can require employees to wait until 90 days after beginning employment to use leave. Also, for partialday usage, employers may require employees to use leave in a minimum of four-hour increments and the smallest increment used to account for other time if more leave is needed.
  • For what reasons may employees take sick leave?
    • The medical diagnosis, care or treatment of a mental or physical illness, injury, or health condition or preventive medical care for an employee or employee's family member, defined as a child (including a biological, adopted or foster child, or a legal ward or child of a worker standing in loco parentis when the child was a minor); a spouse, domestic partner, sibling, parent (same relations as child), grandchild, grandparent, and the parent or child of an employee's spouse, domestic partner or household member (broadly defined to include ex-spouses and partners, co-parents, blood relationships, and intimate relationships regardless of marital status or cohabitation).
    • Closure of the employee's business or need to care for a child whose day care or elementary or secondary school has been closed for public health or safety reasons, or to care for the employee or a family member when health authorities determine that the individual's presence will jeopardize others' health.
  • Is advance notice from the employee required? Employers must grant leave on an employee's oral, written or electronic request that, when possible, includes the expected duration of leave. Employees must make a good-faith effort to provide advance notice. Employers can require advance notice where feasible only if they provide a written policy with notice procedures.
  • Can employers require documentation from employees? Employers can request reasonable documentation for absences of more than three consecutive days but cannot require HIPAA information.
  • A Can employers require employees to find a replacement while taking sick time? No.
  • Is payout on termination required? No
  • Can employers discipline for use of sick leave? Absolutely not. Employers cannot retaliate against any employee for using or requesting earned sick time, for filing a complaint regarding an employer's violation of the law, or for informing another employee of his or her rights under the law. This is based on the premise that employers cannot interfere with, restrain or deny the exercise of the right to use earned sick leave in any way.
  • Do employers have any notice and/or posting requirements? Yes. Employers must provide a copy of the law and a written note of how the law applies to employees upon hire or within 90 days of the effective date of this law (whichever is later). Employers must also post in a conspicuous location accessible to employees a copy of the law and a poster in English, Spanish and any other language designated by Westchester County.
  • Do employers have any record-keeping requirements? Yes. They must retain records documenting hours worked by employees and earned sick time taken by employees for a period of at least three years.

Employers with employees in Westchester County should ensure compliance with this new law. To do so, employers should ensure that they have legally compliant policies and payroll procedures in place, and they should train managers on sick leave use and notice requirements.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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