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Employers may need to cough up pay for sick leave under new laws

April 4th, 2013  |  Sheryl Allenson

There is an ever-changing landscape that in some jurisdictions may require the employer to provide employees with paid sick leave. Several municipalities and one state have already passed legislation mandating employers to pay employees for sick leave, and others are not far behind. There is also federal legislation pending that would affect employers’ obligations to pay employees for sick leave. Ironically, other states are simultaneously considering legislation to prohibit municipalities from enacting these types of laws.  With rapidly changing laws, employers must stay well-versed not only in state and federal laws, but also in local ordinances relating to sick leave.

Municipal ordinances. Most recently, the speaker of New York City’s city council announced that she has reached an agreement on a proposal for paid sick leave for city workers. Action in NYC’s city council comes on the heels of the Portland Oregon City Council’s adoption of a similar ordinance in mid-March.

If passed, the NYC proposal would eventually apply to employers with 15 or more employees. Initially, however, it would extend to employers of 20 or more employees. Specifically, the bill would require those businesses to provide five paid sick days to their employees beginning April 1, 2014. The threshold drops to 15 or more employees on October 1, 2015. Notably, complaints under the ordinance would be limited to those made to an enforcement agency. Private rights of action would be allowed only to contest the agency’s decision. 

Portland ordinance. Under the Portland ordinance, employers with six or more employees are required to provide five days (40 hours) of paid sick leave per year to employees to care for their own illness or for a sick family member. Smaller employers are mandated to grant up to 40 hours of unpaid sick leave.

Employers are also required to post notice of employees’ leave rights and maintain records of leave time accrued and used by employees. (Any health information obtained by an employer pursuant to this requirement must be treated as confidential.) Employers also are prohibited from discriminating or retaliating against employees who request or use sick leave, or complain of being denied requested leave.

Connecticut statute. While municipalities are moving toward passing ordinances requiring paid sick leave, at least one state has already passed legislation requiring statewide coverage. Connecticut last year became the first state to pass a paid sick leave law. Under the law, employers with 50 or more employees are required to provide paid sick leave to certain employees for use for the employee’s sickness; the employee’s child’s, parent’s or spouse’s sickness; or to deal with sexual assault or family violence issues.

Healthy Families Act. Congress has also resurrected legislation in the same arena. On March 20, 2013, the Healthy Families Act was reintroduced into the House and the Senate. That legislation would require employers with 15 or more employees to provide paid sick leave. Specifically, the Healthy Families Act (S 631/HR 1286) would allow workers to earn one hour of paid sick time for every 30 hours worked, for a maximum of 56 hours or seven days of paid leave annually. Sick leave would start to accrue on an employee’s first day of work; employees would be entitled to take accrued leave after 60 days. They also would be allowed to carry over up to 56 hours of unused sick leave from year to year (or more, if the employer permits).

Under the legislation, employees could use their paid sick leave for their own illness, to care for a sick family member, to obtain preventive care, or to address the impact of domestic violence or other crimes. Employers can also require workers to provide documentation supporting any request for leave longer than three consecutive days.

What’s the upshot? The landscape of sick leave law is changing quickly and employers must stay well-versed in current law. Changes in local, state, and federal laws may affect employers’ obligations to provide sick leave to employees and the thresholds for those requirements vary based on the laws. Employers should carefully draft sick leave policies to comport with all applicable laws and ensure that the policies are updated as necessary to meet changes in the law. In so doing, employers also must be careful not to make changes to existing policies that result in discrimination, however.