Arkansas doesn’t have a law on sick leave. Hence, private employers are not obliged to provide paid or unpaid sick leave to their employees. Still, many companies grant it as an important benefit. If an employer offers sick leave benefits, it must comply with its policy or employment contract conditions.
Preemptive Sick Leave Law
In 2017, Arkansas Governor Hutchinson signed the Preemptive Sick Leave Bill into law, which prohibits subdivisions of the state from requiring employers to provide more than what the federal or state law requires.
In other words, local governments are blocked from creating their own regulations around sick leave. Before this law, several cities and counties in Arkansas have passed varying sick leave ordinances, which left employers on a rough path to maintaining compliance.
Arkansas is among the states that have passed preemptive sick leave laws. The other states are Georgia, Ohio, South Carolina, Kentucky, and Iowa.
Arkansas doesn’t have a policy that requires employers to provide sick leave time as an employee benefit. Even so, they must conform to the Family and Medical Leave Act. This federal law entitles employees to unpaid sick leave time. It also protects the employee’s tenure after taking a leave.
An employee can apply for a covered unpaid sick leave time if he or she:
- Has worked for the employer for at least one year
- Has rendered at least 1,250 hours during the year prior to the start of the FMLA leave
- Works at a location within 75 miles radius of the employer with at least 50 employees
Reasons for Unpaid Sick Leave
The FMLA is a law that guarantees job-protected leave for certain medical conditions of the employee or their family member. This law gives eligible employees 12 weeks of unpaid leave.
That said, who is a family member? The law defines a family member to be the spouse, child, or parent of the employee concerned. Child means a biological, foster, or adopted child, a stepchild, or a legal ward. However, in some states, it could also mean the grandparent, grandchild, or siblings.
Again, in the absence of state laws for sick leave in Arkansas, the FLMA definition is followed. The FMLA allows an employee to take up to 12 weeks of unpaid leave within the period of 12 months for any of the following reasons:
- Childbirth or care for a newborn child
- Placement of a child for adoption or care of an adopted child within the first year of placement
- Care for the employee’s family member who has a serious health condition
- Illness or medical condition that hinders the employee from performing his tasks
- Any qualifying emergency or crisis arising out of a family member who is on active duty in the military
Moreover, an employee may take up to 26 weeks of unpaid leave in the period of one year to care for a family member who is a covered servicemember suffering from a serious illness or injury.
Serious Health Condition Defined
A serious health condition can mean any illness, injury, or impairment on the part of the eligible employee or their family member. It can mean both physical and mental health conditions.
It also involves any period of incapacity or treatment, whether the employee needs to be hospitalized or stay in a hospice or residential medical care facility. It covers a period of incapacity or impairment and requires absence for more than three calendar days from work and other regular daily activities.
Furthermore, it involves a period of incapacity due to a chronic, untreatable condition, as well as any absences to receive multiple treatments for more than three consecutive days.
The FMLA only covers employers with at least 50 employees. Hence, smaller employers with fewer than 50 employees are not obliged to provide paid or unpaid sick leave time to their employees.
The only practical effect of the FMLA on these companies is the notice of employee rights that should be posted in their offices or premises. Not doing so can result in a fine of $110. FMLA also applies to all public agencies, including state and federal employers, and schools.
Intermittent Schedule Leave
Eligible employees are entitled to intermittent or reduced schedule leave. This means they can take time off in separate periods of time for health or treatment purposes. For example, an employee with a serious health condition and needs to undergo treatment every couple of months can take unpaid sick leave.
When there’s a need for planned medical treatment, the employee must notify the employer. He or she must make a reasonable effort to schedule the treatment so as not to interfere with business operations.
To avoid interruption in daily operations, and if the condition permits, the employer may transfer the employee to a different job or position with equivalent pay and benefits to accommodate the recurring periods of time off.
If taking an FMLA leave due to birth, adoption, or foster child placement, the request for unpaid leave requires the approval of the employer. Moreover, only the amount of leave actually taken may be charged as FMLA leave.
Whenever an employee requests an FMLA leave for a valid reason as discussed above, the employer has the right to request certification in support of the leave. Generally, the employee is given 15 calendar days to obtain medical certification.
However, the employer may require the employee to seek a second medical opinion. In this case, the employer may select the provider. This, however, will be at the employer’s own expense.
If the opinions of the employee and employer’s healthcare providers differ, the employer may request a certification from a third healthcare provider. This shall again be at the employer’s expense. The third opinion shall be final and binding.
Maintenance of Health Benefits
During the FMLA leave of the employee, a covered employer is required to maintain the health insurance and other benefits of the employee, as if the employee continued to work,
When necessary, arrangements will have to be made for the payment of health insurance premiums, particularly health plans that involve co-payments. In this case, the employee on the FMLA leave must make arrangements to pay for his or her share of the insurance premiums.
Consequently, an employer’s obligation to pay its portion of the health plan premiums stops if the employee decides not to return to work anymore or fails to return to work when the FMLA leave is over. It also applies to separation from employment.
The employer’s responsibility for paying health benefits also stops if the employee fails to pay its portion for over 30 days. The employer must have given the employee written notice at least 15 days in advance that the coverage will cease if unpaid.
Job Protection and Reinstatement
Upon the return of the employee from his or her FMLA leave, the employee must be restored to his or her original job or to a job. An equivalent job is a role or position that is virtually identical to the employee’s original job in terms of pay, compensation benefits, and terms and conditions.
In addition, an employee’s FMLA leave should not be a reason for the termination of any employment benefit that the employee earned or is entitled to.
Sick Leave for Public Employees
State employees who work in a regular salary position are entitled to accrue sick leave with pay. This is equivalent to one day for each calendar month. Paid sick leave is also provided to permanent, provisional, probationary, and temporary employees who work half-time or more on a pro-rata of the schedule for a full-time employee.
According to the Arkansas Code Annotated (ACA), accrued leave may exceed 960 hours during the calendar year. However, those days in excess of 120 days will be forfeited if not used by the end of the year or on December 31 of each year.
Employes who have a balance of 120 days or more at the end of the year may donate their leave time to others. Sick leave among state employees can be used for any of the following reasons:
- When the employee is unable to work due to sickness, injury, or any medical condition, except for slight illnesses
- Death or serious illness of the employee’s immediate family member.
Sick leave for public employees must be earned before it can be used. Furthermore, sick leave is approved on the basis of workdays, not calendar days. Thus, non-working days such as weekends or holidays are not charged as sick leave.
Employees of public employers are given a minimum of 15 minutes for sick leave. Absences due to sickness, in the case for maternity purposes, are charged in the following order:
- Earned sick leave
- Earned annual leave
- Catastrophic leave
- Leave without pay
On top of the paid sick leave afforded to public employees, they can also request unpaid FMLA leave should they need more time off for valid reasons but have run out of their paid sick leave credits.