NEW LAW: Coming Soon to Westchester County – Sick Leave

Attention employers in Westchester County, New York – Under the Westchester County Earned Sick Leave Law, starting April 10, 2019 you will be required to provide sick leave benefits to employees who work more than 80 hours in a year.

How much sick leave must be provided?

 Starting April 10, 2019, eligible employees of Westchester County employers will start accruing sick leave. Employers with less than 5 employees may provide unpaid sick leave, while employers with 5 or more employees must provide paid sick leave benefits.

Unused sick leave can be carried over from year-to-year, but employers are not required to allow an employee to use more than 40 hours of sick leave in one year.

When are employees eligible to use sick leave?

The new sick leave law imposes a 90-calendar day waiting period before a newly hired employee can use sick leave benefits. This means that for employees who have been employed by the employer for more than 90 days as of April 10, 2019, those employees will be eligible to use their sick leave benefits as those benefits are accrued.

What can sick leave be used for?

Under the new law, an employee will be able to use his/her sick leave benefits for the following purposes:

  • an employee’s mental or physical illness, injury or health condition;
  • an employee’s need for medical diagnosis, care, or treatment of such illness, injury, or health condition;
  • an employee’s need for preventative medical care.
  • The care of a family member for a mental or physical illness, injury, or health condition;
  • for the family member’s need for medical diagnosis, care, or treatment of such illness, injury, or health condition;
  • for the family member’s preventative medical care.
  • Certain situations where the public health authorities have either determined that an employee or family member’s presence in the community may jeopardize the health of others or have closed the employer’s place of business.

Under the law, family member is defined as the employee’s

  • a biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis — regardless of age
  • biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child,
  • grandchild,
  • grandparent,
  • sibling,
  • spouse or domestic partner.
  • persons related by blood or affinity;
  • persons with a child in common, regardless of whether they have been married or are domestic partners, or have lived together at any time; and
  • persons not related by blood or affinity who are or have been in an intimate relationship, regardless of whether they have lived together at any time.

What are the employee’s notice requirements before using sick leave?

When the use of sick leave is foreseeable, employees are only required to make a reasonable effort to schedule the use of sick leave in a manner that does not unduly disrupt the operations of the employer.

While, the law does not specify the minimum amount of notice an employee must give for use of sick leave, employers who wish to require an employee to provide notice of his need to use sick leave are required to develop a written policy that contains procedures for the employee to provide notice of his/her need to use sick leave. However, an employer that has not provided to the employee a copy of its written policy for providing such notice shall not deny earned sick leave to the employee based on non-compliance with such a policy.

Can employers require that employees provide documentation verifying their need for sick leave?

Yes, for absences exceeding three consecutive work days, an employer may require an employee provide “reasonable documentation” that the employee’s use of sick leave is for an authorized purpose.

What type of documentation is considered “reasonable documentation”?

“Reasonable documentation” is any documentation signed by a health care professional indicating that sick leave time is necessary.

What are the employer’s notice requirements relating to sick leave?

An employer must give employees written notice of their right to sick leave. This notice must be provided within 90 days of the effective date of the law (to those employees hired before April 10, 2019) or at the commencement of employment (for those employees hired on or after April 10, 2019).

In addition, employers to post a copy of the law in English, Spanish, and any other language deemed appropriate by the County of Westchester in a conspicuous location in the workplace, where all employees can access it.

Are employers required to pay out unused paid sick leave at termination of employment?

No, employers are not required to pay out unused, accrued paid sick leave at termination of employment.  However, if an employee is rehired within 9 months of separation by the same employer, previously accrued sick and safe leave time that had not been used must be reinstated.

What should Westchester County employers do to prepare for the new law?

The Westchester County Earned Sick Leave Law goes into effect on April 10, 2019. In order to prepare for this new law, employers should prepare sick leave policies and plan to include those policies in their 2019 Employee Handbook.   Employers should also review their existing policies on attendance, anti-retaliation, conduct, and discipline for compliance with the new law.  We further recommend that employers watch the Westchester County Board of Legislators’ and County Executive’s websites for additional information on the new law — including a model poster/notice.  Finally, all employers should train Human Resources, supervisory and managerial employees on the new requirements.