This post is part of Priori’s blog series “From Our Network,” where we feature lawyers in our network discussing important issues small businesses face. After every post, we give our readers a chance to ask the lawyer questions, and the lawyer picks several to answer. In today’s post, employment lawyer Deborah Karpatkin answers reader questions about NYC's new Earned Sick Time Act.
Q: You say you can't ask why someone is taking a sick day, but I had a situation where I discovered (via Facebook) that an employee who claimed to have taken a "sick day" was actually enjoying a day at the beach. When something like that happens, does it count as a sick day? How do I handle it?
A: Not surprisingly, beach days don’t count as sick days. The Earned Sick Time Act (ESTA) allows sick time to be used only for the employee’s injury or health condition, or for preventative care, or for the employee to provide care to a sick family member.
And of course, an employer can ask for documentation. For an absence of more than three consecutive work days, an employer can ask for reasonable documentation that the sick leave was used for ESTA-compliant reasons – for example, a note signed by a licensed health care provider indicating the need for the amount of sick time taken. And for any sick leave absence, an employer can require an employee to provide written confirmation that s/he used the sick time in accordance with the law.
An employer can’t require that the documentation specify the nature of the employee’s or the family member’s injury, illness, or condition, because that’s disclosing personal medical information.
As for what to do about your employee who took a beach day – ESTA makes clear that an employer can take disciplinary action against an employee who uses sick time for to go to the beach, or for other reasons that aren’t covered by ESTA.
Q: How would the city find out if I'm non-compliant – just if an employee complains or is there an agency that audits you somehow?
A: The Earned Sick Time Act doesn’t provide for “audits,” but that’s not the end of the story. The New York City Department of Consumer Affairs (DCA) has the authority to receive, investigate, and resolve complaints about non-compliance. It’s easy to submit complaints online, and the law requires that complaints be investigated. DCA can impose a $50-per-employee fine for willful non-compliance with the “notice of rights” requirement. That’s in addition to the penalties and damages DCA can impose if it determines that an employee was improperly denied compensated sick time, or subjected to retaliation. Bottom line: it’s better to comply.
Q: I'm an employee at a six-person business. I get three weeks of vacation, but no sick leave. Is my employer required to give me separately designated sick leave or does my vacation time count toward my sick leave?
A: It depends on your employer’s rules for using vacation time. If your six-person business has at least five employees, your employer is required to give eligible employees paid sick leave. Your paid vacation benefit can count toward the required sick leave if it’s at least as much as you would be entitled to under the Earned Sick Time Act (ESTA), and your employer allows you to use it in the same way sick leave can be used under ESTA.
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