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U.S. Master™ Wage-Hour Guide, 2009 Edition

U.S. Master™ Wage-Hour Guide, 2009 Edition
Presents a first approach to the broad and complex controls under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and other statutes regulating employee wages and hours.

LABOR & EMPLOYMENT LAW — 7/22/08

Paid family and sick leave campaigns growing at the federal, state level

For most US workers, getting sick with the cold or flu is simply an inconvenience that means taking a few paid days off of work until they feel better enough to get back on the job. But for nearly half of all private industry workers that is not an option. According to 2007 data from the Department of Labor's Bureau of Labor Statistics, as many as 43 percent of private industry workers do not have access to paid sick leave. Besides issues with being unable to perform your job competently when you are sick, employers want their employees to stay home when they are sick to avoid spreading contagious diseases (i.e., the flu, gastrointestinal viruses) to their coworkers. That decision is made more difficult when employees are faced with losing their pay and potentially their jobs if they stay home sick. What about employees who need such leave after the birth or adoption of a child or to take care of a sick family member? With employers refusing to provide paid leave, legislators at both the federal and state level are stepping in to require employers to provide such leave.

Federal legislation. At the federal level, Senator Edward Kennedy (D-Mass) and Representative Rosa DeLauro (D-Conn) reintroduced legislation in March 2007 called the Healthy Families Act (H.R. 1542/S.910), which would require private and public employers with 15 or more employees (for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year) to provide a minimum of seven paid sick days a year to full-time workers (i.e., working 30 hours per week) to care for the medical needs of themselves or sick family members. The amount of leave would be pro-rated for part-time employees (working less than 30 but at least 20 hours a week, or less than 1,500 but at least 1,000 hours per year). Specifically, the leave can be used to care for the employee's own illness or physical or mental condition, to obtain a medical diagnosis, a related treatment or preventive care and to care for a family member for those same reasons. A "family member" is defined as a child, parent, spouse or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. Under the proposed bill, employers must: (1) post notice of the availability of paid sick leave and how to file an enforcement action; (2) make, keep, and preserve records on compliance with the Act; and (3) keep health information confidential and separate from personnel files; and (4) not discriminate against, interfere with or deny the employee's right to paid sick leave. The requirements under the Act are minimum requirements and are not to be construed to discourage employers from adopting or retaining more generous leave policies. The bill can be found at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s910is.txt.pdf. The Congressional Budget Office estimates that the Healthy Families Act would cost $3 million to $4 million annually. The bill would not affect direct spending or revenues.

Legislation that would provide federal employees with four weeks of paid parental leave after the birth or adoption of a child passed the US House of Representatives on June 19, 2008. Called the Federal Employees Paid Parental Leave Act (H.R. 5781), the bill would cover all federal government employees who are eligible for 12 weeks of unpaid leave under the FMLA. Employees must have been with their current employer for at least a year, and have logged at least 1,250 hours in the past year. Among those employees not covered under the bill are: DC government employees, temporary and part-time employees, postal workers, the military and the Federal Aviation Administration, among others. All employees of the House and Senate (including Members' personal offices and Committee Staff) would be covered under the proposed bill. In addition to giving all federal employees four weeks of paid parental leave, the proposed bill would allow them to use any accumulated annual or sick leave to offset the 12 weeks of unpaid leave guaranteed by FMLA. Unlike the FMLA, where the leave for the birth or adoption of a child must be taken within one year of that birth or adoption, under the proposed Federal Employees Paid Parental Leave Act, the leave for a birth must be taken for the purpose of caring for the child (i.e., if a parent waits to take leave until the child is 6 months old, it must be to care for the child, they cannot take it if the child is in daycare). In the case of adoption, the leave is available to parents who adopt a child of any age, within one year of the adoption. The Bush Administration opposes the legislation. More on the Federal Employees Paid Parental Leave Act can be found at: http://maloney.house.gov/index.php?option=com_issues&task=view=issue&issue_Itemid=35.

State legislation. Several states have already passed or are considering bills to require employers to provide their workers with a minimum number of paid leave days each year.

California. The California State Assembly has passed a bill that would allow employees who work in the state to earn seven or more paid sick days in a calendar that can be used to recover from illness, care for a sick family member or recover from domestic violence or sexual assault. Called the Healthy Families, Healthy Workplaces Act (A.B. 2716), the Assembly approved the bill in a 43-25 vote. The paid sick leave would be accrued at a rate of no less than one hour of paid sick time for every 30 hours worked. An employee would be entitled to use accrued sick time days beginning on the 90th calendar day of employment. Employees in smaller firms (fewer than 10 employees) would be able to take up to 40 hours or five days of leave in each calendar year and all other workers would be able to take up to 72 hours or nine days of leave per calendar year. The bill is supported by a statewide coalition of over 50 organizations including local governments, health professionals and civil rights organizations. Media reports indicate that Governor Arnold Schwarzenegger (R) has taken no position on the legislation, which now goes to the Senate. The measure has already cleared the Senate Committee on Labor and Industrial Relations and is now with the Senate Committee on Appropriations, where it is also expected to pass. Media reports indicate that Governor Arnold Schwarzenegger (R) has taken no position on the legislation

The proposed bill would also prohibit employers from discriminating or retaliating against employees who request paid sick leave. The bill would also require employers to satisfy specified posting, notice and recordkeeping requirements. The state's Department of Industrial Relations would administer and enforce the bill, including the promulgation of regulations, investigation, mitigation and relief of violations of its requirements, including imposing specified administrative fines for violations. An employee who suffers an injury as a result of a knowing and intentional failure by an employer to comply with the bill would be entitled to recover the greater of all actual damages or $50 for the initial pay period in which a violation occurs and one hundred dollars $100 per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars $4,000, and is entitled to an award of costs and reasonable attorney's fees. The bill would specify that it does not apply to employees covered by a collective bargaining agreement that provides for paid sick leave days, nor does it lessen any other obligations of the employer to employees. In particular, the bill would not apply to employees in the construction industry covered by a collective bargaining agreement if the agreement expressly waives the requirements of the bill in clear and unambiguous terms. The proposed bill can be found at: http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_2701-2750/ab_2716_bill_20080324_amended_asm_v98.pdf.

The bill would expand on legislation signed into law by the governor in 2002 when California became the first state to guarantee paid family and medical leave. That legislation created a paid family leave program to be administered by the California Employment Development Department. Effective January 1, 2004, and applying to all California employers, every employee who qualifies for state disability insurance is entitled to a maximum of six weeks of partial pay (i.e., up to 55 percent of their weekly wages, currently up to a maximum of $917 while on leave) each year while taking time off from work to: (1) bond with a newborn baby, adopted or foster child (both parents); and (2) care for a seriously ill parent, child, spouse or registered domestic partner.

Connecticut. In May 2008, the senate passed a bill (S.B. 217) mandating that Connecticut employers with 50 or more employees provide paid sick leave to their employees. The bill, which also applies to municipalities, passed by a vote of 20-16. The bill would allow employees to accrue paid sick time at the rate of one hour for every 40 hours worked, up to 52 hours. That means a full-time worker would get 6.5 paid sick days per year. Part-time and seasonal workers are exempted from the bill. Employees begin accruing time on the first day of work, but employers may enforce a 90-period before new hires can use the accrued sick time. The bill was introduced by Senator Edith G. Prague (D-Columbia), the Senate Chair of the legislature's Labor and Public Employees Committee. Employees would be able to use their sick time to care for themselves or a family member. Under the proposed bill, however, employers may ask their employees to provide documentation of illness or doctor's visit for any leave of three consecutive days. In amendments voted on May 1, the senate agreed to include an exemption for certain existing collective bargaining agreements. The bill would take effect October 1, 2008. The bill, which went to the state House for consideration, was not called for a vote before the legislative session ran out May 7. Media reports indicate that the bill may be brought up during a special session of the state legislature.

District of Columbia. Employers must begin complying with the District of Columbia's paid sick leave bill starting November 13, 2008. Called the "Accrued Sick and Safe Leave Act of 2007" (B17-0197), the law requires employers with 100 employees or more to provide seven paid sick or safe days for their employees; employers with 25-99 employees must provide five days of leave; and employers with 24 or fewer employees must provide three sick or safe days. Paid "sick or safe" days are available for a variety of uses, including when: (1) the employee or his/her family member is sick (resulting from physical or mental illness or injury); (2) the employee or his/her family member (child, parent, spouse, domestic partner) needs routine or preventative medical care; and (3) the employee who is a domestic violence victim needs time off to seek medical care, shelter, counseling, a court order, or other services related to the domestic violence.

Employees must complete a full 12 months of employment before becoming eligible for the leave. In addition, exemptions to the Act were added for healthcare workers and for restaurant wait staff. The bill also provides a "hardship" exemption for businesses. The definition of "hardship" would be defined by the Mayor's office. Employers that fail to post information about the Act will be fined $100 per day for up to 180 days to up to $1,000 per year. The bill also defines "employees" according to the definition provided in the FMLA. The Accrued Sick and Safe Leave Act of 2007 can be found at: http://www.dccouncil.washington.dc.us/images/00001/20080311113451.pdf.

Ohio. May 8, was the deadline for the Ohio legislature to take up the Ohio Healthy Families Act (H.B. 536), a proposed bill requiring employers with 25 or more employees to provide not less than seven days of paid sick leave annually for full-time employees, but the legislature did not act on bill during the 120-day legislative session. Consequently, the Ohioans for Healthy Families Coalition (OMF), which initially collected the signatures required to submit the Ohio Healthy Families Act to the state legislature, has started collecting the 120,683 certified signatures it will need by August 6 to place the measure on the November ballot. The coalition's website can be found at: http://www.sickdaysohio.org.

The proposed law would also allow part-time employees a pro-rated number of days depending on the number of hours they worked. Sick leave would begin to accumulate immediately, but no employer would be required to grant accrued sick leave before 90 days from the commencement of employment. An employee could use sick leave for the following reasons: (1) an absence resulting from a physical or mental illness, injury, or medical condition of the employee; (2) an absence resulting from obtaining professional medical diagnosis or care, or preventive medical care, for the employee; and (3) an absence for the purpose of caring for a child, parent, or a spouse, who has any of the conditions or needs diagnosis or care. Employees must make reasonable efforts under the Act to schedule leave in a manner that does not unduly disrupt the operations of the employer and sick leave must be provided upon the oral or written request of an employee. Employers violating the Act could be liable for monetary damages, including attorney fees and equitable relief where appropriate. The Act can be found at: http://www.legislature.state.oh.us/bills.cfm?ID=127_HB_536.

New Jersey. Beginning January 1, 2009, legislation (S786/A873) providing paid family leave benefits to employees caring for sick family members and newborn or newly adopted children will take effect in the state of New Jersey. Signed by Governor Jon S. Corzine on May 2, 2008, the legislation extends the state's existing Temporary Disability Insurance (TDI) program to permit up to six weeks of insurance benefits for workers taking leave to provide care certified to be necessary for a family member. The program requires no contributions from employers and is 100 percent funded by an employee payroll deduction amounting to approximately $33 a year, or 64 cents a week. Participating workers will receive no more than two-thirds of their weekly pay, up to a maximum weekly benefit of $524. Workers would have to exhaust maternity and disability leave time prior to being eligible for paid family leave and use at least two weeks of sick leave and vacation time before using paid family leave time, according to the bill. The legislation also ensures that small businesses (50 or fewer employees) have the option to replace employees receiving Family Leave Insurance benefits. To prevent fraudulent claims, certain anti-fraud measures of the Temporary Disability Benefits Law such as criminal penalties and increased fines for those who improperly claim benefits, will be used. The legislation can be found at: http://www.njleg.state.nj.us/2008/Bills/A1000/873_I1.HTM.

San Francisco. In 2006, San Francisco became the first locality in the nation to guarantee paid sick days for all its workers. The ordinance (Proposition F), which took effect on February 5, 2007, requires San Francisco employers to give employees one hour of paid sick leave for every 30 hours worked. Employees can use paid sick leave benefits to take care of themselves; their parents; legal guardians; siblings; children; spouses; registered domestic partner; and grandparents. In addition, employees may designate one person at the beginning of employment whom they care for who is not covered by the above categories, but have to use the paid sick leave for that person for the course of employment. The ordinance can be found at: http://www.municode.com/content/4201/14131/HTML/ch012w.html.

Washington State. In May 2007, Governor Christine Gregoire signed a bill (SB 5659) that created a family leave insurance program in Washington. Slated to begin on October 1, 2009, the law provides employees in the state with up to up to five weeks' of paid family leave "because of the birth of a child of the employee and in order to care for the child," or "because of the placement of a child with the employee for adoption." The law also provides employees at companies with 25 or more with reemployment after taking leave. To qualify for job protection, the individual must be employed for at least twelve months by the employer and for at least one thousand two hundred fifty hours of service with that employer during the previous twelve-month period. The program will provide a $250 weekly benefit for an employee who regularly works 35 hours or more per week. Benefits for individuals who regularly work less than 35 hours per week will be pro-rated. Individuals who work 35 hours or more per week must take at least 8 hours of family leave in a week to be eligible for benefits. The benefit for those who take less than 35 hours of family leave in a week will be calculated at .025 times the maximum weekly benefit times the number of hours of family leave taken in the week. The state still has not fully decided how it is going to pay for the program. The program is funded entirely by workers' contributions. http://www.leg.wa.gov/pub/billinfo/2007-08/Pdf/Bills/Senate%20Passed%20Legislature/5659-S2.PL.pdf

There are other bills in Alaska (SB 258), Maine (LD 1454) and Massachusetts (S 1073/ H 1803), among other states that are in the early states of legislative development.

Not all are happy with paid sick leave. Business groups like the National Federation of Independent Business claim that requiring paid sick leave will lead to a significant loss of jobs, mostly among low-wage workers. NFIB recently released a study claiming that the California bill alone will impose $4.6 billion in new direct costs on businesses and cost another $59.3 billion in lost sales over the law's first five years, leading to the elimination of 370,000 jobs. Paid sick leave supporters counter that paid sick leave actually saves employers money by reducing employee turnover and preventing ill workers from infecting others.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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