Westchester County (NY) last night enacted an Earned Sick Leave law, becoming the third county nationwide to do so. Montgomery County, Maryland and Cook County, Illinois also have enacted PSL laws. The Westchester County law is effective in 180 days. .
The law has the typical PSL architecture: employees will accrue one hour of sick time for every 30 hours worked and may earn and use up to 40 hours in a year for itemized reasons. For employees of employers with at least 5 employees, the earned time is paid. Unused time may be carried over to the following year, although the employer can cap the maximum amount of sick leave taken in any given year at 40 hours.
The law will be enforced by the Department of Weights and Measures-Consumer Protection. An aggrieved employee has the option to pursue a private right of action in court against the employer. Damages available include up to three times the amount of sick time taken but not paid, $500 for sick time denied and not taken, and other relief including actual damages, attorneys’ fees, the costs of the administrative hearing, and other appropriate monetary and equitable relief.
The law has a “reverse preemption” provision, the first of its kind in a PSL law. Under that provision, if the federal or state government passes a PSL law with the same or substantially the same provisions, the County law will be “null and void.”
The law shortchanges union-represented employees through what I call the “comparable benefit fiction.” That section of the law allows an employer and union to deny bargaining unit employees all of the benefits and protections of the PSL law by including in their agreement a “comparable benefit.” One of the listed examples of a comparable benefit” is “holiday and Sunday time pay at a premium rate.” That premium time on holidays and Sunday is not comparable to paid sick leave is self-evident. Beyond that, the law does not define “premium rate”, does not require that an employee ever be offered the opportunity to earn that premium and does not even require that the employer be open for business on a holiday or Sunday!
The Westchester County law is the sixth PSL law to be enacted this year. The others are Maryland, Michigan, New Jersey, Austin (implementation enjoined pending a legal challenge), and Duluth, MN. Last year, only one new PSL was passed (Rhode Island)!