Paid Sick Leave May Soon Be Federally Required

July 31, 2009

Excerpted from Delaware Employment Law Letter and written by an attorney at the law firm of Young, Conaway, Stargatt & Taylor

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Some form of federally mandated paid sick leave has long been a goal of many Democrats in Congress. With the recent introduction of the Healthy Families Act (HFA) in both houses of Congress as well as a Democratic majority and President, it appears they are closer than ever to achieving that goal.

If passed and signed into law by President Barack Obama, the HFA would require most employers to provide all employees with seven days of paid sick leave per year. Let's take a look at the details of the proposed legislation and how it may affect you.

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What the legislation would require
The HFA would apply to all private employers that have 15 or more employees in the current or preceding calendar year and to private agencies regardless of the number of employees. It would require them to allow employees to accrue up to 56 hours of paid sick leave per year, starting with the very first day of employment. Employees would be allowed to use the leave for absences that:

• result from a physical or mental illness, injury, or medical condition of the employee, the employee's minor child, or certain other family members; or
• are taken to obtain professional medical diagnosis or care or preventive medical care for the employee, the employee's minor child, or certain other family members.

Other family members for which leave may be taken include the employee's adult child if incapable of self-care, a parent, a spouse, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

In a bit of a twist, the legislation would also require employers to allow employees to take paid leave for absences that result from domestic violence, sexual assault, or stalking, some of which may not technically fit into the category of sick leave. For example, employees would be entitled to paid leave for the purpose of:

• obtaining or assisting a family member in obtaining counseling or services from a victim organization (such as a rape crisis center);
• relocating or assisting a family member in relocating; and
• preparing for or participating in legal proceedings (or assisting a family member in doing so).

If an employer has an existing policy that complies with the HFA's requirements, it wouldn't be required to offer employees additional leave beyond what is allowed in the existing policy. Nor would the employer be required to pay employees for unused sick leave upon termination of employment. However, employees who are rehired within 12 months after separation would be entitled to reinstatement of any unused leave they had accrued before their termination.

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Accrual and use of leave
The proposed legislation provides that employees should begin to earn paid sick time as soon as their employment begins and may use any accrued leave starting on the 60th calendar day after they start employment. Employers would be required to award paid leave at the rate of no less than one hour for every 30 hours worked.

Exempt employees would be assumed to work 40 hours a week unless they ordinarily work less hours, in which case they would accrue leave time based on the number of hours actually worked. It appears that the intent of this section is that exempt employees who work more than 40 hours a week will still accrue paid leave based on a 40-hour workweek. For example, let's say Marguerite is an exempt executive who normally works 45 hours per week. Under the HFA, her employer would be required to award her paid leave time as if she were working only 40 hours per week. However, if she normally works 35 hours per week, the employer would have to award her paid leave time only for those 35 hours.

Employers would be allowed to cap the amount of leave accrued at any given time to 56 hours in a calendar year, unless the company choose to set a higher limit. Paid leave could be carried over from one calendar year to another, but employers would be allowed to maintain the overall cap of 56 hours of leave.

Using Marguerite as an example again, let's say she worked an entire calendar year without using any of her 56 hours of accrued paid leave. She would be allowed to carry over that leave to the following calendar year rather than returning to a zero balance and starting to accrue leave all over again. However, she wouldn't be entitled to accrue more than 56 hours of leave at any given time regardless of how much she had carried over from the previous year. If she had used 20 hours of leave in the first calendar year, she would start the next year with 36 hours of leave and accrue additional leave up to the cap of 56 hours.

Notice and certification procedures. Employees would be required to provide seven days' notice for foreseeable leave and make a reasonable effort to minimize disruption to your business operations. In addition, employers would be entitled to certification of the need for leave, including medical certification similar to that required under the Family and Medical Leave Act (FMLA) and documentation of any domestic violence incidents (such as a police report or restraining order).

FMLA leave. Although it isn't mentioned in the HFA, under existing FMLA regulations, it would appear that employers could require employees to take the two types of leave concurrently. However, employers would have to be careful not to assume that all paid sick leave under the HFA also qualifies for FMLA leave. Since there is no requirement that health conditions under the HFA be "serious," far more medical problems will qualify for paid HFA leave than for unpaid leave under the FMLA.

Primary differences between HFA and FMLA leave
Although the HFA uses language that's similar to much of the language in the FMLA, it doesn't propose to amend the FMLA. It's a totally freestanding law. Here's a quick look at some of the biggest differences:

• The HFA applies to employers that have as few as 15 employees, compared to 50 employees under the FMLA.
• Under the HFA, employees start accruing leave on the first day of employment, compared to the FMLA's 12-month eligibility requirement.
• The HFA requires seven days of paid sick leave per calendar year, compared to the FMLA's 12 weeks of unpaid leave (26 weeks for military caregivers).
• The HFA leave applies to pretty much any health concern, whereas the FMLA applies only to serious health conditions.
• In addition to illnesses and injuries suffered by the employee, the employee's children, parents, and spouses -- which are all covered by the FMLA -- the HFA applies to the employee's other blood relatives and others who are related to the employee "by affinity or close association."

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Copyright 2009 M. Lee Smith Publishers LLC. This article is an excerpt from DELAWARE EMPLOYMENT LAW LETTER. DELAWARE EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Delaware employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. ___________________________________________________________________

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