Do Your Employees Have the Flu? Follow These Paid-Sick-Leave Laws

And don’t forget about the Family and Medical Leave Act and Americans with Disabilities Act

Allen Smith, J.D. By Allen Smith, J.D. January 14, 2019
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​It's flu season, and if your employees haven't started calling in sick yet—either due to their own illness or to take care of a family member—they will soon. Time for employers to familiarize themselves with state and local paid-sick-leave statutes.

Paid-sick-leave laws clarify who is covered, the rate at which employees accrue paid sick leave and waiting periods before paid sick leave can be used.

The laws typically include a provision stating that if an employer provides paid time off (PTO) that is at least as generous as what the law requires, the employer will be deemed in compliance. So, multistate employers may want to review their PTO policies and ensure that they are at least as generous as paid-leave laws require in states and cities where most of their employees are located, according to Marjory Robertson, assistant vice president and senior counsel, and Abigail O'Connell, senior counsel, for Sun Life Financial in Wellesley Hills, Mass.

States with paid-sick-leave laws include:

These cities have enacted paid-sick-leave laws:

Other jurisdictions with paid-sick-leave laws are:

 A court has entered an order blocking the Austin, Texas, paid-sick-leave law. Litigation is expected to challenge the San Antonio paid-sick-leave ordinance, as well. Employers should follow San Antonio's law until it is blocked by a court or pre-empted by the state legislature, if either occurs.

Who the FMLA, ADA and Sick-Leave Laws Cover

Employers should not presume that compliance with federal laws, such as the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA), is sufficient, noted Blythe Lovinger and Meg Inomata, attorneys with Vedder Price in New York City and Washington, D.C., respectively. Businesses should ensure that their sick-leave policies comply with the laws of all applicable jurisdictions.

The flu could be a serious health condition within the meaning of the FMLA if it lasts more than three calendar days—not unusual with the flu—and if an eligible employee visited a health care provider once and received a shot or prescription, noted Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C. Or the flu could be a serious health condition if the employee visited a health care provider twice within a 30-day period or had to spend the night in a hospital.

"On the other hand, if the employee toughed it out without seeking medical treatment, then it might not be covered by the FMLA," she noted.

[SHRM members-only toolkit: Managing Family and Medical Leave]

The flu generally is not considered a covered disability under the ADA because in most cases it does not last long enough to substantially limit a major life activity, said Kristen Gallagher, an attorney with McDonald Carano in Las Vegas.

Paid-sick-leave laws provide fully paid days off each year to employees for:

  • Recuperating from their own illnesses, including short-term conditions such as flu or a cold.
  • Caring for family members with short-term illnesses.
  • Attending routine medical appointments for themselves or family members.

Paid-sick-leave laws often define "family member" broadly and may include domestic partners, grandparents, grandchildren, siblings, parents-in-law and sometimes even anyone the employee considers a family member. By contrast, only a parent, child and spouse are covered family members under the FMLA. The exception is "next of kin," who are covered for injured service member leave.

"Employers may implement a single policy for all employees that complies with the most generous of any jurisdiction's paid-leave laws," Gallagher said. "But as more laws are passed, it will become more difficult for employers to create uniform policies that apply across the country."

If certain requirements cannot be incorporated into a universal policy, employers should consider addendums that address the more stringent state or local requirements, recommended Lauren Harris, an attorney with Greensfelder in St. Louis.

Rate at Which Employees Accrue Paid Sick Leave

The amount of sick leave employees accrue varies by jurisdiction.

The majority of states and municipalities with paid-sick-leave statutes require a minimum accrual rate of one hour of sick leave for every 30 hours worked, Lovinger and Inomata said. Some laws require accrual at the rate of one hour of sick leave for every 40 hours worked.

Paid-sick-leave laws may require different accrual rates for large and small employers. For example, Washington, D.C., requires one hour per 37, 43 or 87 hours worked, depending upon the number of employees in an organization, noted Matt Morris, vice president of FMLASource at ComPsych Corp. in Chicago.

Part-time employees and employees without serious health conditions or disabilities who aren't covered by the FMLA or ADA are often eligible for sick leave under state and local regulations, Lovinger and Inomata added. For example, in California any employee who works 30 or more days within a year from the beginning of his or her employment is entitled to begin accruing paid sick leave.

Waiting Periods

Many of the paid-sick-leave laws stipulate that new employees cannot use or do not start to accrue any paid sick leave until they work a certain number of days, usually 90, Robertson and O'Connell noted.

The laws also typically indicate, however, that employers can let an employee use paid sick leave before it is accrued. Some laws state that if an employer allows workers to use paid sick leave right away, no sick leave need carry over into the new year.

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