Legal Clinic Out Sick-Leave Laws

Question: We are pulling our hair out with all of the different sick-time laws around the country popping up. Some say four days, some say five days, some say 40 hours, yet all have different rates of accrual, different rules on rollover and many have different definitions of covered absences. What should we do about this? We have employees in multiple states and it seems like every other day there’s a new law and we have to re-draft our handbook. Is there any way to simplify all of this and still be in compliance?

Friday, June 2, 2017
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Answer: The simple answer is that there's no simple answer. For employers operating in multiple jurisdictions, the reality is that there is an amalgam of paid-sick-time laws that vary not only from state to state, but also from city to city and county to county. While there is no federal law requiring private employers to provide paid-sick leave, states such as Arizona, Connecticut, California, Massachusetts, Oregon, Vermont and Washington have their own paid-sick-leave laws. More than 30 local jurisdictions, including those in California, Illinois, Maryland, Minnesota, New Jersey, New York, Pennsylvania and Washington have enacted laws requiring employers to provide sick leave.

As a result, employers should always consult outside counsel when formulating sick leave policies in order to ensure that the policies do not run afoul of the rapidly emerging laws. Key considerations when crafting internal sick-time policies include:

* Who is covered;

* How many hours an employee has to work before coverage begins;

* How much sick time is provided;

* What sorts of activities constitute grounds for sick leave;

* What family members are included in the definitions of "family;"

* Whether unused time is lost or banked or replenished;

* When coverage begins (fiscal year or date of employment or another date);

* What happens at the start of each year;

* Whether there is a private right of action for violations of sick-time laws; and

* Whether the law prohibits retaliation against employees who request or use sick leave.

Another way an employer can simplify the task of keeping track of various sick leave laws entails formulating a sick-leave policy under the laws of the most generous jurisdictions in which it has employees and applying it to all of its employees around the nation. For instance, an employer could permit every worker to qualify for sick leave after working the number of hours worked in the most generous jurisdiction in which it has employees. Moreover, an employer can take this "most favored nation" approach with regard to the number of hours of sick time given to each employee, the definition of sick-time eligible activities, and the definition of "family." For employers who can afford it, this approach would eliminate jurisdictional differences, allow for a uniform sick leave policy and lead to easier administration.

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Alternatively, an employer may consider drafting an all-inclusive paid time off policy that includes time off for sickness, if the relevant state and local laws allow for such an option. This would again eliminate jurisdictional differences and give employees flexibility to use their paid time off as needed. Of course, the paid time off policy would need to be at least as generous as the sick leave laws of the most generous jurisdictions. Nevertheless, one potential drawback of this all-inclusive approach is that some states (e.g., California) require employers to pay out accrued, unused paid time off while most paid sick leave laws do not require such a payout. Thus, employers should choose their desired approach strategically.

All in all, given the recent changes in the law in this area, it is important for employers to monitor various news and legal sources (many of which are available online) that track new paid sick leave laws. Employers must also identify and consider the laws applicable in the cities, counties and states in which they do business. Review the differences between each law and if a single policy is being used, ensure that it provides employees with protections pursuant to the most generous law. And finally, employers should consult outside counsel to strategize a compliance plan.

Keisha-Ann G. Gray is a partner in the Proskauer’s labor and employment department, resident of the New York office. Proskauer Associate Ebony Ray, also in the New York office, assisted with this article.


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