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MANDATORY PAID SICK LEAVE
.ISSUE
The purpose
of this legislation is to require an employer to provide
each employee with not less than 1 hour of accrued paid sick
time for every 30 hours worked up to a total of 56 hours of
paid sick time in a calendar year.
The proposal includes part- time employees. If the normal
workweek of such an employee is less than 40 hours, the
employee shall earn paid sick time based upon that normal
work week.
An employer is any “person” engaged in commerce or in any
industry or activity affecting commerce who employs 15 or
more employees for each working day during each of 20 or
more calendar workweeks in the current or preceding calendar
year.
For the purpose of counting employees for coverage, an
employee is basically anybody on the payroll for any amount
of time. This aspect of the definition has its roots in
the Fair Labor Standards Act definition, which is much
broader than other employee definitions such as those found
under equal opportunity laws.
It also includes coverage for “exempt” employees under the
Fair Labor Standards Act, such as executive and
administrative exemptions, often referred to as “white
collar” exemptions.
Commerce is more broadly defined than in the Fair Labor
Standards Act. The terms “commerce” and “industry or
activity affecting commerce” mean any activity, business, or
industry in commerce or in which a labor dispute would
hinder or obstruct commerce or the free flow of commerce,
and include “commerce” and any “industry affecting
commerce,” as defined provisions of the Labor Management
Relations Act.
Employees will be eligible to earn paid sick time at the
commencement of their employment. An employee shall be
entitled to use the earned paid sick time beginning on the
60th calendar day following commencement of the employee's
employment. After that 60th calendar day, the employee may
use the paid sick time as the time is earned. An employer
may, at the discretion of the employer, loan paid sick time
to an employee in advance of the earning of such time by
such employee.
Paid sick time earned shall carry over from one calendar
year to the next; however, the proposal is not to be
construed to require an employer to permit an employee to
accrue more than 56 hours of earned paid sick time at a
given time.
Any employer with a paid leave policy who makes available
an amount of paid leave that is sufficient to meet the
requirements of the bill and that may be used for the same
purposes and under the same conditions as the purposes and
conditions outlined in the bill shall not be required to
permit an employee to earn additional paid sick time.
If an employee is separated from employment with an
employer and is rehired within 12 months after that
separation by the same employer, the employer shall
reinstate the employee's previously earned paid sick time.
The employee shall be entitled to use the earned paid sick
time and earn additional paid sick time at the
recommencement of employment with the employer.
An employer cannot require, as a condition of providing
paid sick time under this bill, that the employee involved
search for or find a replacement worker to cover the hours
during which the employee is using paid sick time.
Paid sick time earned may be used by an employee for any of
the following:
- An absence resulting from a
physical or mental illness, injury, or medical condition
of the employee.
- An absence resulting from
obtaining professional medical diagnosis or care, or
preventive medical care, for the employee.
- An absence for the purpose of
caring for a child, 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, who has any of the conditions or
needs for diagnosis or care and in the case of someone
who is not a child, is otherwise in need of care.
- An absence resulting from domestic
violence, sexual assault, or stalking, if the time is to
seek medical attention for the employee or the
employee's child, parent, or spouse, or an individual
related to the employee, to recover from physical or
psychological injury or disability caused by domestic
violence, sexual assault, or stalking; obtain or assist
a related person in obtaining services from a victim
services organization; obtain or assist a related person
in obtaining psychological or other counseling; seek
relocation; or take legal action, including preparing
for or participating in any civil or criminal legal
proceeding related to or resulting from domestic
violence, sexual assault, or stalking.
Paid sick time shall be provided upon the oral or written
request of an employee. Such request must include the
expected duration of the period of such time; in a case in
which the need for such period of time is foreseeable at
least 7 days in advance of such period, be provided at least
7 days in advance of such period; and otherwise, be provided
as soon as practicable after the employee is aware of the
need for such period.
If the absences are for reasons allowable under the bill
but not for domestic violence, sexual assault, or stalking,
an employer may require that a request for paid sick time be
supported by a certification issued by the health care
provider of the eligible employee or of an individual, as
appropriate, if the period of such time covers more than 3
consecutive workdays.
The bill provides the terms of what constitutes “sufficient
certification.”
If the absence is for permissible leave related to domestic
violence, sexual assault, or stalking, a different
certification procedure is to be followed.
The leave provided is in addition to unpaid leave provided
under the Family and Medical Leave Act.
The bill does provide for various penalties and enforcement
procedures. The most notable is that it provides for an
action to recover the damages or equitable relief in any
Federal or State court of competent jurisdiction by one or
more employees or individuals or their representative for
and on behalf of the employees or individuals, or the
employees or individuals and others similarly situated. The
employer could be liable for damages equal to
- The amount of any wages, salary,
employment benefits, or other compensation denied or
lost by reason of the violation; or in a case in which
wages, salary, employment benefits, or other
compensation has not been denied or lost, any actual
monetary losses sustained as a direct result of the
violation up to a sum equal to 56 hours of wages or
salary for the employee or individual;
- The interest on the amount
calculated at the prevailing rate;
- An additional amount as liquidated
damages;
- Equitable relief as may be
appropriate, including employment, reinstatement, and
promotion; and
- In addition to any judgment
awarded to the plaintiff, allow a reasonable attorney's
fee, reasonable expert witness fees, and other costs of
the action to be paid by the defendant.
STATUS
Representative Rose
DeLauro (D-CT) has introduced H.R. 2460, the Healthy
Families Act. Senator Edward Kennedy (D-MA) has introduced
the companion bill, S. 1152, in the Senate.
ANALYSIS
Fifty-six hours of paid vacation. Why would employees not
take all of this leave?
Putting aside the huge economic burden this law would
cause, one could anticipate a variety of unintended
consequences. We would think employers would contemplate
cutting any paid vacation time provided to employees. We
would think employers would reconsider the need for part-
time employees. We would think some employees would prefer
others benefits rather than paid sick time.
The administrative burdens would range from managing the
additional leave requirements to dealing with certification
procedures.
Representative DeLauro says:
“This is really about
simply setting the floor on what we all can agree is good
corporate citizenship. This is about staying competitive as
a nation. But that is harder and harder to do, when 57
million people in our workforce do not have the right to
take time off from work when they are sick, or when they
need to stay home to care for a sick child or elderly
relative. Meanwhile, nations all around the world, our
competitors – do not face the same handicap and are surging
ahead.
“It is about keeping
our businesses and workers strong – and helping to maintain
their edge in a tightening global economy. But, we also
know, it is hard to stay ahead when 19 of the 20 most
competitive countries in the world guarantee paid sick days
– and the United States is the odd one out.
“What does it say when
Lesotho and Papua New Guinea are implementing paid sick days
to give their businesses and their entire nation a
competitive edge, yet America still does not get it?”
The Society for Human Resource Management (SHRM), which
opposes the bill as written, has this to say about the bill:
“Rather than a one-size-fits-all government approach, where
federal and state laws often conflict and compliance is
determined under regulatory silos, SHRM advocates a
comprehensive workplace flexibility policy that, for the
first time, responds to the diverse needs of employees and
employers and reflects different work environments, union
representation, industries and organizational size.”
SHRM does, however, believe “that all employers should be
encouraged to provide paid leave for illness, vacation and
personal days to accommodate the needs of employees and
their family members. In return, employers who choose to
provide paid leave would be considered to have satisfied all
federal, state and local leave requirements.” For a 21st
century workplace flexibility policy to be effective, SHRM
believes the policy must meet the following principles:
- Shared Needs – The policy must
meet the needs of both employees and employers. Rather
than an inflexible government approach, policies
governing employee leave should be designed to encourage
employers to offer a paid leave program (i.e., vacation,
sick time, personal days or “paid time off” (PTO) bank
that meets baseline standards to qualify for a
statutorily defined “safe harbor.”
- Employee Leave – Employers should
be encouraged voluntarily to provide paid leave to help
employees meet work and personal life obligations
through the safe harbor leave standard.
- Flexibility – A federal workplace
leave policy should encourage maximum flexibility for
both employees and employers.
- Scalability – A federal workplace
leave policy must avoid a mandated one-size-fits-all
approach and instead recognize that paid leave offerings
should accommodate the increasing diversity in workforce
needs and environments.
- Flexible Work Options – Employees
and employers can benefit from a public policy that
meets the diverse needs of the workplace in supporting
and encouraging flexible work options such as
telecommuting, flexible work arrangements, job sharing
and compressed or reduced schedules. Federal statutes
that impede these offerings should be updated to provide
employers and employees with maximum flexibility to
balance work and personal needs.
OUTLOOK
It is hard to imagine that the proponents could get 60 votes
in the Senate. But then it is hard to imagine that anyone
would even introduce a bill like this, in times like these.
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