Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Recent developments in New York City and Westchester County, New York, may require employers to review their existing leave policies and procedures. Revised Earned Sick and Safe Time Act rules were adopted in New York City, and Westchester County enacted a new ordinance, the Earned Sick Leave Law. Below we highlight the most notable changes in New York City’s rules and the new requirements in Westchester County.
New York City Revised Rules & FAQs
On September 20, 2018, revised rules concerning New York’s Earned Sick and Safe Time Act (ESSTA) took effect, and the New York City Department of Consumer Affairs (DCA), which enforces the ESSTA, revised its frequently asked questions (FAQ). Although most of the changes are cosmetic, others are substantive.
Employer Notices & Policy Requirements
Time of Hiring Notice: The revised rules require written notice about the ESSTA to be personally provided to employees in a method that reasonably ensures personal receipt. The rules specify that providing a notice in an employee’s primary language is only required if that language is the primary language of at least 5% of employees at the location and the city has created a notice in that language; if it has not, the notice must be provided in English and any other language in which the employer customarily communicates with the employee. Permissible methods of delivery include personal delivery, for example, by including it with new hire materials, U.S. mail, and email.
Policy Requirements: New York City already had some of the most demanding written policy requirements, which have only increased with the revised rules. For example, now employers must maintain sick and safe time policies in a single writing. If employers require employees to provide notice of their intent to use leave, their leave policy must detail notice procedures. If an employer uses a vacation or PTO policy to comply with the law, the policy must expressly state that time taken off under the policy may be used for any of the law’s covered purposes. The policy must also include all other required written policy provisions and cannot include any provisions inconsistent with or prohibited by the law.
As set forth in a separate FAQ published by the DCA, an employer’s policy must also describe the law’s two-pronged confidentiality requirements. First, an employer cannot require employees or their health care or other service providers to disclose personal health information or the details of the matter for which an employee requests leave. Second, an employer must maintain confidentiality of information obtained solely because of the law, unless the employee consents in writing or disclosure is required by law.
Regardless of the type of policy utilized to meet the requirements of the ESSTA, it must be personally distributed when employment begins, within 14 days of any updates or other revisions, and upon request.
Elective surgery, including organ donations, is no longer grounds for taking time off under the ESSTA.
Payment for Leave Use (Piece Rate)
The rule for calculating an employee’s rate of pay when leave is used by an employee paid a piece rate was replaced with the flat rate rule and pay is provided regardless of the number of hours actually worked. For these employees, time off for sick and safe leave purposes is paid at his/her most recent hourly rate, which is calculated by dividing the employee’s total earnings (including tips, commissions, and supplements) for the most recent workweek in which no leave was taken by the number of hours of work performed during such workweek or 40 hours, whichever is less.
Prohibitions & Penalties
Absence Control Policies: Employers are now expressly forbidden from maintaining or applying absence control policies that count time off protected by the ESSTA as absence(s) that may lead to disciplinary action.
Retaliation: A person cannot penalize an employee for, or take action reasonably likely to deter an employee from, exercising or attempting to exercise his/her rights under the ESSTA or interfere with the employee’s exercise of those rights. Employees need not refer explicitly to the law or rules to be protected. Examples of prohibited retaliation now include intimidating or harassing the employee, informing another employer that the employee engaged in protected activities, and/or discriminating against an employee, including based on perceived immigration status or work authorization. Causation may be established based on direct or indirect evidence, and the employee need only show that his/her attempted, anticipated, or actual exercise of protected rights was a motivating factor for adverse action.
Failure to Respond to Agency Penalty: The DCA can impose a $500 penalty if an employer fails to timely and fully respond to the agency’s request for information or a record that is the subject of a notice of violation. This penalty is in addition to any other penalties or remedies imposed as a result of the investigation.
Covered Employers & Employees
Revised Joint Employment Standards: The rules solidify the DCA’s longstanding principle that joint employers cannot allocate responsibility for compliance with the law among themselves. Instead, the entities will be held jointly and severally liable.
New Definition of “Domestic Worker”: A new rule clarifies that the ESSTA does not apply to domestic workers employed by an agency if the worker provides services to the agency’s clients, regardless of whether the worker is jointly employed by another party, including a private household, when providing those services.
New Westchester County Law
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, 2019,1 unless they are covered by a collective bargaining agreement (CBA), in which case the law will take effect on the CBA’s current expiration date, or not at all if the CBA provides more generous benefits. The following summarizes employer obligations under the ordinance.
Covered Employers, Employees & Family Members
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. However, federal work-study program participants and employees compensated by or through qualified federal scholarships are not covered. For employers with employees covered by a collective bargaining agreement (CBA) when the law takes effect, the law applies beginning on the CBA’s stated expiration date. Also, the law does not apply to any employee covered by a valid CBA if: 1) the law’s provisions are expressly waived in the CBA; and 2) the CBA provides for a comparable benefit (including, but not limited to, vacation, personal time, sick time, and holiday and Sunday pay at premium rates) for employees covered by the CBA in the form of paid days off, which must be in the form of leave, compensation, other employee benefits, or some combination thereof.
The definition of “family member” under the ordinance refers to a child, grandchild, grandparent, parent, sibling, or spouse or domestic partner. Additionally, family members include: 1) persons related by blood or affinity; 2) 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 3) 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.
Accrual, Caps, and Carryover Requirements
Westchester County’s provision on using existing policies like vacation or PTO to comply with paid sick obligations is less clear than similar provisions in other laws. 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. It is hoped the enforcement agency will clarify the standard in the future.
For employers using a standalone Westchester County sick leave policy, accrual starts when employment begins or 90 days after the law goes into effect, whichever is later. Generally, employees accrue one leave hour for every 30 hours worked, but domestic workers accrue one leave hour for every 7 days worked.
The ESLL caps accrual of paid sick time to 40 hours per year, but does not bar an employer from instituting a higher cap. Unused leave can be carried over to the following year, though the statute contains an unclear caveat that we hope will be clarified; that caveat states that leave may carry over “provided that the maximum amount of sick leave for any given year remains at forty (40) hours.” The ESLL, as drafted, does not appear to allow front loading.
Employers can institute a 90-day waiting period before leave can be used. Leave may be taken for an employee’s or covered relation’s: 1) mental or physical illness, injury, or health condition; 2) medical diagnosis, care, or treatment of such condition; and/or 3) preventive medical care. Leave can also be used if: 4) 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 5) 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.
For an initial period of leave, an employee may be required to use a minimum of 4 hours. If more time is needed, the employee can use the smallest increment an employer’s payroll system uses to account for an absence or use of other time.
Employees are entitled to use up to 40 accrued paid leave hours in a year, unless the employer allows a higher amount.
Employee Notice and Documentation Requirements
For foreseeable absences, employees need only make a reasonable effort to schedule leave in a manner that does not unduly 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.
For absences that span 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.
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.
Employers cannot: 1) interfere with, restrain, or deny the exercise of, or attempt to exercise, the right to use leave under the ESLL; 2) consider paid time off authorized under the ESLL as an absence that may lead to or result in discipline, discharge, demotion, or suspension; 3) retaliate or discriminate against an employee for exercising his/her rights under the ESLL; 4) require an employee to find a replacement worker as a condition of taking time off under the ESLL; or 5) require a doctor to provide a note that contains information in violation of HIPAA.
Employer Notice, Posting and 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.
If an employer requires any advance notice of the need for leave, it must provide employees with a written policy that states the procedures to provide that notice. If that is not provided, the employer may not deny the request because the employee failed to comply with the policy.
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. Notably, New York State law already requires employers to keep records of the hours worked by their employees for at least six years.
Enforcement and Penalties
Aggrieved employees may file a lawsuit or an administrative complaint with the Westchester County Department of Weights and Measures – Consumer Protection within one year of the alleged violation. The law allows them to recover a variety of damages, including: 1) $250 or three times the wages that should have been paid , whichever is greater, for each instance protected leave was taken but not paid; 2) $500 for each instance protected leave was requested but denied and not taken; 3) $500 for each instance leave was conditioned upon the employee searching for or finding a replacement; 4) the full amount of unpaid leave plus actual damages suffered as a result of a violation; 5) reasonable attorney’s fees; 6) reinstatement and back pay; and other appropriate monetary or equitable relief. A willful notice and posting violation is subject to a civil fine of up to $500.
If they have not already done so, employers covered by the New York City law may need to take immediate action. For businesses that will be subject to the Westchester County law, more time – but not an abundance of it – is available to review whether and how policies and procedures may be impacted. Given the relatively short period of time between the Westchester County law being enacted and taking effect, it is uncertain whether regulations will be finalized or FAQ issued before the law takes effect. In either case, employers should consider discussing with human resources, payroll, and knowledgeable counsel to determine how the changes will affect operations.
1 See Westchester County Board of Legislators, Earned Sick Leave Law, available at http://westchesterlegislators.com/earned-sick-leave-law.html (“Takes effect 180 days after October 12, 2018”).