Robert Esselborn, a chef at the Crosby Street Hotel in New York City who
had worked there for a year, requested time off from his job on December
15, 2013 to care for his wife of 17 years who had suffered a stroke. Four
days later the head chef, Anthony Paris, who had been a contestant and
winner on the Food Network Program "Chopped", asked Esselborn
in an e-mail to provide a date when he would return to his job. Esselborn,
whose wife was then on life support, responded that he would be able to
give a definite return date by January 1
st . That wasn't good enough for Paris, who then fired Esselborn, saying
the wait was "too long" and ordered him to clean out his workplace
locker even though a human resources director had approved his leave,
according to court papers. His wife died the following day.
Esselborn sued, claiming that Paris had violated the Family Medical Leave
Act (FMLA), which gives eligible employees the right to take unpaid, job-protected
leave for up to 12 workweeks in a 12 month period to care for an immediate
family member who has a serious health condition.
Although he probably has a good case, he would have had a better one had
this incident occurred after April 1 this year, when the New York City
Earned Sick Time Act went into effect.
Under the new law, private sector workers in businesses with 5 or more
employees are able to earn up to 40 hours of paid sick time a year. Private
sector workers in smaller businesses receive job protection for up to
40 hours of unpaid sick time a year.
The New York City law provides that:
• Workers earn one hour of sick time for every 30 hours worked.
• Business size is determined by counting all workers in a business.
In certain chain businesses and franchises, all workers in the chain or
franchise are counted together in determining if the business meets the
size threshold for paid sick time.
• Paid or unpaid sick time can be used to care for a worker's
own health needs or to care for the health needs of a worker's spouse,
domestic partner, child, parent, grandchild, grandparent, sibling, or
the child or parent of a worker's spouse or domestic partner.
• Workers begin earning sick time as soon as they are hired but will
have to work for 120 days before they are able to use the time.
• Part-time workers are covered by the bill and earn paid sick time
based on hours worked.
• Domestic workers are covered. They are entitled to two paid sick
days in addition to the "days of rest" they receive under state law.
• Any type of paid leave—paid time off, vacation, personal days,
etc.— count for purposes of complying with the law as long as it
can be used for sick leave purposes.
• Workers are protected against retaliation. The law will be enforced
by the New York City Department of Consumer Affairs, which will have the
power to take complaints, investigate on its own initiative, and assess
fines and damages for violations of the law. Complaints must be filed
with the agency within two years.
• The bill does not cover independent contractors, work-study students,
government employees, and certain hourly occupational, speech, and physical
• Collective bargaining agreements (CBAs) in the construction and
grocery trades may opt covered workers out of this law, and other CBAs
may opt out if the CBA provides comparable benefits.
The takeaway? Whether you work in New York City or not, you have the right
to take medical leave to care for a relative if you are an eligible employee
under the FMLA or the New York Earned Sick Time Act.