Westchester County, NY Paid Sick Leave

On October 12, 2018, Westchester County, New York, enacted a new ordinance called the Earned Sick Leave Law (ESLL). For most employees in Westchester County, the ESLL will take effect on April 10, 2019, unless they are covered by a collective bargaining agreement (CBA). Below summarizes the law requirements.

Covered Employees: Private employers that employ five or more employees, or one or more domestic workers, must provide paid sick time, whereas other employers must provide unpaid sick time. The ordinance covers any person or domestic worker employed in Westchester County for more than 80 hours in a calendar year.

Accrual and Carryover: The ESLL caps accrual of paid sick time to 40 hours per year, but does not limit an employer from allowing a higher cap. Unused leave can be carried over to the following year, though the statute contains an unclear requirement that we hope will be clarified; that requirement states that leave may carry over “provided that the maximum amount of sick leave for any given year remains at forty (40) hours.”  The law, as drafted, does not appear to allow front loading. Employers may require a 90-day waiting period before use of paid sick leave.

Family Member Definition: The definition refers to a child, grandchild, grandparent, parent, sibling, or spouse or domestic partner. Additionally, family members include:

• 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.

Permitted Uses: Leave may be taken for an employee’s or covered relatives: mental or physical illness, injury, or health condition; medical diagnosis, care, or treatment of such condition; and/or preventive medical care. Paid Sick Leave can also be used if: an employee’s place of business, or a child’s day care, elementary or secondary school is closed due to a public health emergency; or a public health authority determines the presence of an employee or covered relation in the community may jeopardize others’ health because of the individual’s exposure to a communicable disease, whether or not the individual has actually contracted the communicable disease. Unlike other paid leave laws, including New York City’s ESSTA, leave cannot be taken under the ESSL for purposes connected to domestic violence, sexual assault, or stalking.

Existing PTO Policies: In lieu of calculating leave accrual, employers can provide an employee with sick time and personal time which, if combined, equals 40 hours or more per year that can be taken without advance notice and without restrictions other than those contained in the law.

Pay Rate Requirements: Leave must be paid at the same rate the employee is paid for hours worked, which cannot be less than the state minimum wage.  Employers are not required to cash out accrued but unused leave when employment ends.

Notification: For foreseeable absences, employees need only make a reasonable effort to schedule leave in a manner that does not disrupt an employer’s operations; the law does not prescribe a minimum amount of notice.  All requests must include the anticipated duration of the absence.

Absences for more than three consecutive work days, an employer may require reasonable documentation that the time off was for needed a covered purpose. The law does not address non-documentation verification.

Collective Bargaining Agreements: If the employees are covered by a collective bargaining agreement (CBA), the law will take effect on the CBA’s current expiration date, or not at all if the CBA provides more generous benefits.

Recordkeeping Requirements: All employees must be given a copy of the law and written notice of how it applies to them within 90 days of the law’s effective date, and all new hires must be given the same documentation upon hire. Additionally, employers must post a copy of the law and a poster conspicuously for employees.  These must be in English, Spanish, and any other language deemed appropriate by the county.

Employers must keep records that clearly document the hours worked by their employees, and all sick leave that they accrued or used, during the prior three years by employees.  New York State law requires employers to keep records of the hours worked by their employees for at least six years.

Please click here for further review of the new rules.

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 This information is provided as a courtesy, may change, and is not intended as legal or tax guidance. Employers with questions or concerns outside the scope of a Payroll Service Provider are encouraged to seek the advice of a qualified CPA, Tax Attorney or Advisor.