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 therapists.
• 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.