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Are Employers Required To Provide Paid Sick Leave?

NOT YET, BUT THEY MAY HAVE TO IN THE NEAR FUTURE!

August 2009

By: Joseph H. Laverty

On May 18, 2009, the Healthy Families Act (HFA) was introduced to both the house and senate sponsored by Representative Rosa DeLauro and Senator Edward Kennedy. The bill has been referred to Committee, which is the first step in the legislative process. Bills first go to committees to deliberate, investigate, and revise them before they go to a general debate. The bill, as written, would require employers to provide employees with up to 56 hours of paid sick leave. This is a change to the current law, which does not "require" employers to pay sick leave. Companies are worried that, if passed, the Act would limit an employer's flexibility in designing a benefits package that meets the needs of their unique workforce, resulting in significant costs for employers and the possibility of losing employees who prefer other benefits rather than paid sick leave.

The HFA would require employers with 15 or more employees to allow them to accrue one hour of paid sick leave for every 30 hours worked. An employee would begin accruing the sick leave at commencement of employment and is able to begin using the leave after 60 days. The paid sick time could be used for the employee's own medical needs or to care for a child, parent, spouse, or any other blood relative, or for an absence resulting from domestic violence, sexual assault or stalking.

The HFA specifically states that the Act does not supersede any state or local law that provides greater paid sick time or leave rights. Sick leave required under the HFA would be in addition to any leave provided under the Family and Medical Leave Act or state Workers Compensation laws. Additionally, under the HFA, if an employer's existing paid leave policy failed to meet all the requirements of the Act, the employer's plan would need to be amended to comply with the HFA requirements.

Another concerning issue in the HFA, for employers who have no-fault attendance policies, is that the Act would prohibit an employer from counting any leave taken by an employee under the legislation from counting as leave under an employer's no-fault attendance policy.

For employers who have collective bargaining agreements, the HFA would not affect such contracts until either the date of termination of the contract or the date that occurs 18 months after the Secretary of Labor issues HFA regulations, whichever is earlier.

Other primary points of interest of the HFA are as follows:

• Earned paid leave that is not used by an employee must be carried over from one year to the next. Employers would not be required to pay out accumulated leave upon termination of employment.

• Employees shall make reasonable efforts to schedule the paid leave as not to unduly disrupt the employers operations.

• When foreseeable, the employee is to provide at least seven days' notice to the employer, but the Act would only require that notice be provided "as soon as practicable after the employee is aware of the need" for leave that is not foreseeable.

• If there is more than three consecutive workdays to be taken, the employer may require certification by a health care provider and the employee shall return the certification no later than 30 days after the first day of leave.

• Employers may not deny an employee's attempt to take paid leave provided under the HFA by discharging, discriminating or retaliating against any individual, and an employer shall not use the taking of HFA paid sick time as a negative factor in an employment action, such as hiring, promotion, or disciplinary action.

• An individual may file a complaint with the Department of Labor or a civil action to recover damages or equitable relief against an employer in federal or state court and be entitled to wages, salary, employee benefits or other compensation denied or lost by reason of the violation. There is also the possibility for liquidated damages or reinstatement. The Act also provides for reasonable attorney's fees, reasonable expert fees and other costs of the action to be paid by the defendant if liability is found.

• Under the Act, the Secretary of Labor can investigate and attempt to resolve complaints, but also has the authority to bring an action in court to recover damages and seek injunctions to restrain violations.

Employers should be familiar with the requirements of the HFA and monitor its progress through Congress. The bill will likely receive serious consideration in Congress and, if passed, it is practically certain that President Obama would sign the legislation into law. While it has been anticipated that numerous bills would move slowly through Congress because of the current economic situation of the country, and with Al Franken being seated as the Junior Senator from Minnesota, if the bill was voted on party lines it would pass. Wessels Sherman will keep its clients and friends apprised of the status of the HFA in future Client Alerts.

Questions? Please contact WS Shareholder and Senior Attorney Joseph H. Laverty at (563) 333-9102 or jolaverty@wesselssherman.com.