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State and local laws requiring employers to provide paid sick time are proliferating. Four states—California, Connecticut, Massachusetts and Oregon—and Washington, D.C., currently mandate paid sick time, while at least one county and 17 cities have enacted similar laws.
“I think we’ll see a lot more of these laws soon; it’s a trend that’s not going away,” S. Libby Henninger, an attorney with the Washington, D.C., office of Littler, told SHRM Online. “Employers really need to be aware of what’s happening in their state.”
Although the existing laws follow a somewhat standard structure, their specific provisions differ, such as which workers are covered; the number of hours of paid sick time that can be earned, carried forward and used; and which family members can be cared for when using sick time.
The five existing state-level laws require, at a minimum, that employers provide eligible employees with paid sick time to use for their own illnesses, to care for their ill spouses or children, and to use for “safe time” purposes related to domestic violence, sexual assault, or stalking. The laws embrace a similar definition of “child”: a biological, foster, or adopted child; stepchild; legal ward; or child for whom the worker has assumed the responsibilities of parenthood.
The laws also uniformly provide that workers begin to earn paid sick time at the start of employment but can’t use it until the 90th day of employment, or the 680th hour of employment in the case of Connecticut. Workers can carry forward varying amounts of unused sick leave, but states allow employers to place restrictions on its use. California and Connecticut don’t provide for a private right of action, but Massachusetts, Oregon, and Washington, D.C., do. Only Oregon allows paid sick time to be used to bond with a new child or deal with the death of a family member.
Some Employers Struggling
Lack of a uniform approach can make record-keeping difficult and present obstacles to employer compliance. Employers seem to be adjusting to the new laws with varying degrees of ease, according to several employment law practitioners.
Implementation of Connecticut’s law went “slightly better than expected,” according to Shipman & Goodwin partner Daniel Schwartz in Hartford, Conn. Employers seem to have found the law, which has been in effect since 2012, less intrusive than anticipated, he said. “If an employer provides five days of sick leave per year, generally you’re in compliance.” Schwartz added that there haven’t been many claims pursued through the state labor department. “Generally, employers have adjusted well to it,” he said.
Conversely, implementation of Washington, D.C.’s law, in effect since 2008 and amended in 2013, “hasn’t gone very smoothly,” according to Teresa Wright, an attorney with Jackson Lewis. Wright said that the law has left employers struggling with two new costs: the cost of providing sick time to employees formerly not covered and the cost of consulting with lawyers and employment advisors to ensure compliance.
Marrying existing employer policies—especially those that provide merged paid time off (PTO)—with the law’s mandate for specific amounts of sick time can be a real challenge for employers, Wright said, adding, “it’s almost easier for companies that have never provided any leave.” As an example, she cited recent amendments to the D.C. law that now require employers to provide sick time to temporary and part-time workers—something not many employers did in the past—as well as unlimited annual carryover and use of sick time. She recommends that employers establish or maintain separate leave banks for vacation and sick time rather than a shared PTO bank to more readily ensure compliance with sick-time laws.
The silence of the Washington, D.C., law on certain issues also poses problems, Henninger said. For example, in addition to the amended law eliminating the limit on annual carryover and use of sick time, she noted that it fails to address how to calculate paid sick time for employees who are paid completely on commission. She suggested that employers look to statutory requirements in such cases, allowing commissioned employees to accrue leave in accordance with other exempt employees (up to 40 hours a week in D.C.) and providing the statutory minimum wage for sick days taken.
In addition, disparate state laws “heavily impact a subset of employers with cross-jurisdictional employees,” often found in the construction industry or the contingent workforce, Henninger said. These individuals might work, for example, in Washington, D.C., for four months, then for three months in Montgomery County, Md., which has its own sick-leave law, then return to Washington, D.C., for another few months. In this case, ascertaining the accrued sick time that must be granted under the D.C. law would be very difficult, especially because, although workers begin to earn paid sick time at the start of employment, they can’t use it until the 90th day of employment. Henninger advised employers to allow employees in these circumstances to accrue and use sick time while working in their jurisdiction, unless they are absolutely certain the employee will never spend 50 percent of his or her work hours in Washington, D.C., thus failing to qualify as an “employee.”
In the absence of a standardized framework, many national employers are crafting their own compliance solutions, Henninger noted. “Front-loading,” or placing the maximum number of hours of sick time accruable under any existing state law into a worker’s account on Jan. 1 and making it available for use 90 days into employment, is permissible in all state-level jurisdictions and many large employers are doing this. “Accrual, carryover and jurisdictional issues are such a challenge that a lot of national employers are taking this tack,” Henninger said.
Other employers, especially those in tristate regions, are trying to address the disparities by crafting multijurisdictional policies with a uniform approach to accrual method, carryover cap, amount of leave that can be taken and increments in which leave can be taken “to alleviate the burden of so many individualized local and state policies,” Henninger said.
Wright noted that some multistate employers have adopted a “highest common denominator” approach to the problem of conflicting state requirements, providing all employees with the greatest amount of sick time required under the most liberal law applicable to their operations. She doesn’t advise this approach for everyone, though. “One size doesn’t fit all; a lot depends on company culture and employer concerns,” she said. “For instance, is the employer more concerned about the cost of implementation, or compliance with laws that may not apply?”
In advising employers on how best to comply with state sick-leave laws, Schwartz stressed the importance of understanding the specific provisions of a company’s own state law. In Connecticut, for example, the statute offers the flexibility for employers to give paid time off in lieu of complying with the accrual and use requirements. This can be done through a handbook provision and may be the best course of action for an employer trying to comply with a similar law. However, that would not be the case in every jurisdiction, he said. “Adopting the best policy for your state may result in having slightly different models.”
Rosemarie Lally, J.D., is a freelance legal writer and editor based in Washington, D.C.
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