There are several employment law movements that are gaining momentum throughout the country. Late last year, we discussed the “ban the box” movement that is pushing legislation that prohibits employers from including criminal history questions on applications and places other limitations on hiring individuals with criminal pasts.
Another movement that is gaining momentum is the mandatory sick leave movement. On March 9, 2016, Vermont’s governor signed a mandatory sick leave law making it the fifth state to require employers to provide sick leave to employees. Vermont joins California (see summary), Connecticut (see summary), Massachusetts (see summary), and Oregon (summary coming soon). In addition to these five states, there are currently 22 cities, including Washington, DC (see summary), and one county that require it (see A Better Balance’s Overview of Paid Sick Time Laws for a very good analysis of each state, county, and city sick leave law). There is no reason to believe that we have seen the last of the sick leave laws.
Below is a discussion of several provisions that are common among the various sick leave laws.
Paid vs. Unpaid Leave
Many of the sick leave laws allow certain groups of employers to provide unpaid sick leave while others must provide paid sick leave. Whether an employer must provide paid sick leave or unpaid sick leave is typically based on how many employees a business has. A common threshold is 10 employees, meaning businesses with fewer than 10 employee must only provide unpaid sick leave where businesses with 10 or more must provide paid sick leave. For example, the California, Massachusetts, and Oregon sick leave laws all contain this 10 employee threshold.
Accrual Method vs. Lump Sum Method
Another element of many sick leave laws is that they allow employers to award sick leave to employees in two ways: accrual and lump sum. The accrual method requires employers to grant employees a certain number of sick leave hours for a certain number of hours worked. For example, California requires employers who use the accrual method to grant employees one hour of sick leave for every 30 hours worked. The laws usually allow employers to cap the number of hours employees may accrue in a year. For example, Connecticut employers may cap the number of sick leave hours an employee may accrue in a year at 40. With the accrual method, employers typically must allow employees to carryover some or all of their unused sick leave to the following year.
The lump sum method requires employers to award employees a specific number of hours of sick leave at the beginning of each year. For example, in Massachusetts, businesses must give employees 40 hours of sick leave at the beginning of each year if they choose the lump sum option. One of the benefits of the lump sum method is that businesses are not generally required to allow employees to carryover unused sick leave to following years. For many, it is also administratively easier.
Sick Leave Use Caps
All sick leave laws allow businesses to cap the number of sick leave hours employees may use in a year. The use caps under the five states and Washington, DC, sick leave laws are:
- California – 24 hours or 3 days, whichever is more
- Connecticut – 40 hours
- Massachusetts – 40 hours
- Oregon – 40 hours
- Vermont – from 1/1/2017 to 12/31/2018: 24 hours; after 12/31/2018: 40 hours
- Washington, DC – 24 of fewer employees: 24 hours; 25-99 employees: 40 hours; 100 or more employees: 56 hours
Sick leave laws typically define the instances in which employees may use sick leave. These permitted uses generally include, but may not be limited to, the following:
- to care for the employee’s own physical or mental illness, injury, or medical condition or preventative medical care;
- to care for a family member’s physical or mental illness, injury, or medical condition or preventative medical care;
- to care for matters related to domestic violence.
Interestingly, some laws are more generous in the coverage of family members. For example, Washington, DC, includes children, grandchildren, spouses, spouses of children, siblings, spouses of siblings, parents, parents of spouses/domestic partners, registered domestic partners, and persons with whom an employee has a committed relationship and has shared a mutual residence for at least the preceding 12 months.. Massachusetts on the other hand only includes children, spouses, parents, and in-laws.
Qualifying alternative leave policies
Most sick leave laws allow employers to use vacation, paid time off, or other similar leave policies to meet their sick leave requirements. For these alternative leave policies to be sufficient, they must meet the minimum requirements of the relevant sick leave law, including permitting employees to accrue the same amount of leave and use it under the same conditions. Some laws require these alternative policies to contain a provision informing employees that they will not be provided extra sick leave beyond what is provided in the qualifying alternative leave policy.
Unfortunately, it is impossible to cover all the requirements and differences between the various sick leave laws in this article. It is also safe to assume that businesses will have to stay vigilant as more and more states, counties, and cities pass sick leave laws. Taking the time now to understand whether your business is failing to provide required sick leave is critical. If you need help in this endeavor, have questions about your sick leave obligations, or need help drafting a legally compliant sick leave policy, please feel free to contact me at (678) 446-0865 or [email protected] We at EmploymentLawHandbook.com would be happy to help.