As employees are increasingly absent from work during the COVID-19 situation, employers in New York City and Westchester County should be aware of paid time off provisions under the Earned Safe and Sick Time Act (ESSTA, New York City) and the Earned Sick Leave Law (ESLL, Westchester). This alert emphasizes important points to keep in mind when confronting sick leave and paid time off conditions.

First, employers may not require employees to use available paid time off under either ESSTA or ESLL. Use of paid time off under these laws is only at the request of an employee, even if the employee is eligible and even if the employer believes that the employee’s situation qualifies for use under the relevant law.

Second, while employers may think of these laws being intended for sick leave or care of a sick family member only, they are broader and have provisions that are especially relevant to the present situation. Under both ESSTA and ESLL, an employee may use paid time off when their place of business is closed by order of a public official due to a public health emergency. That would cover restaurants in New York City, for example, and will likely expand. Both ESSTA and ESLL also allow use of paid time off for employees whose children’s schools have been closed by order of a public official due to a public health emergency.

Third, when the employee is terminated with no reasonable expectation of returning to the workplace, neither ESSTA nor ESLL require employers to pay employees for accrued but unused sick time upon termination of the employment relationship.  In general, New York State law does not require pay out of accrued but unused paid time off upon termination where an employer has a written policy stating that it will not pay out.  However, if the employee is laid off or is terminated with the reasonable expectation that the employee will return to the workplace once business picks up, there may be an obligation under ESSTA and ESLL to pay the departing employee sick pay.