Overlapping Sick Leave Law Provisions: Guidance for What Applies

If you’re wondering whether your employer is covered by a paid sick leave law, increasingly the chances are it is. While some local sick leave laws have been blocked, such as in Texas, in at least 21 states and more than two dozen municipalities, paid sick leave or paid time off (PTO) mandates are in effect now or soon, and their provisions — unfortunately for HR — often overlap.

These mandates include the federal contractor paid sick leave law; and 21 statewide laws, many of which have taken effect: Alaska, Arizona, California, Colorado, Connecticut, Illinois (a PTO law), Maine (a PTO law), Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada (a PTO law), New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington, plus a statute in Washington, D.C.

Peeling Back the Layers

“Even the most conscientious and well-intentioned employers can run into compliance problems because paid sick leave requirements often conflict or layer on top of each other,” said Ann Marie Zaletel, an attorney with Seyfarth in New York City and Los Angeles.

When both a state and a city in that state have paid sick leave laws, the statutes rarely match perfectly, she noted. Employers must comply with whichever rule or provision is more generous to the employee.

In some cases, a state law provision may be more generous than the analogous city law provision, in which case the employer follows the state law provision. However, the same city law may have other provisions that are more generous than the analogous state provisions, in which case the employer complies with the more generous city provisions, Zaletel said. In short, compliance often requires an employer to adopt certain provisions of one applicable law and, at the same time, adopt other provisions of different applicable law.

The details of paid sick leave or PTO laws often vary significantly, noted Josua Seidman, an attorney with Seyfarth in New York City. 

“Each law includes between 20 and 30 substantive legal requirements — for example, employee eligibility; reasons for use; family members for whom the employee may take paid sick leave; new hire waiting period; amount of paid sick leave entitlement; annual paid sick leave use limit; treatment of unused paid sick leave at year-end; employer notice and posting requirements; employee notice requirements; recordkeeping requirements; documentation, etc.,” he said.

There is also the issue of multijurisdiction employees — for example, workers who have a hybrid work arrangement under which they work certain days from home and other days from the employer’s office or other work location; and employees such as sales workers who are mobile and work in multiple locations. “An employee’s location of work — not the employer’s headquarters or office location — determines which paid sick leave laws apply,” Zaletel said. “Thus, a multijurisdiction employee may be eligible for paid sick leave under multiple paid sick leave laws.”

Fiona Ong, an attorney with Ogletree Deakins in Baltimore, cautioned employers to “monitor state and local developments in this area. The landscape is constantly changing — and the recent passage of paid family and medical leave laws in a number of states has complicated this issue even further.”

A Decision Forest

Administering leaves is not for the faint of heart, noted Sebastian Chilco, an attorney with Littler in San Francisco, and Stephanie Mills-Gallan, an attorney with Littler in Milwaukee and Chicago.

“Just determining proper steps under a single law might require a comprehensive decision tree,” they observed. “In any jurisdiction with multiple leave laws  — paid and/or unpaid — determining whether, when, and/or how leave laws interact might call for a decision forest.”

Various leave laws establish the amount of time an employee can be absent; often, that is in a year. “But what is a ‘year’ under a law can vary, so although an employee might have used up all available leave in a year under one law, there might be leave available to use under a different law with a different year,” they pointed out. “A ‘year’ can even be different under the same law.” 

For example, under New York City’s ordinance, the definition of “year” for sick and safe leave use differs from that for use of paid prenatal personal leave.

Whether an employer can require an employee to use available paid leave during an absence more than one law covers can also be a challenge, Chilco and Mills-Gallan added. For example, an unpaid leave law like the federal Family and Medical Leave Act might allow employers, under certain circumstances, to require employees to use their paid leave during an absence. 

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“However, a mandatory paid sick and/or safe leave law might say that the employee retains sole discretion about whether to preserve that paid time and take their leave unpaid,” they noted.

Coverage

Most paid sick leave laws cover time off for personal and family illness, medical care including regular medical check-ups, and safety needs for domestic violence and sexual assault, said Jenifer Bologna, an attorney with Jackson Lewis in White Plains, N.Y.

“Some also cover mental health days. Just a day off for mental wellness,” she said.

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Most of these laws require employers to provide one hour of sick time for 30 hours worked, Bologna added. 

“However, the amount of time an employee accrues and can use in a year varies,” she said. “Some states like New York allow up to 56 hours of time off. Most are up to 40 hours.”

Some state laws, like in Illinois and Maine, have moved away from sick/safe uses and can be used for any reason, akin to a general PTO policy, she noted. 

“Most of the time, paid sick leave obligations can be covered by a general PTO or paid sick leave policy that provides greater rights, but we are seeing some more specific paid sick leave laws, such as in New York, where there is a prenatal leave law, that require time off in addition to any other paid sick leave or PTO policy,” Bologna said.

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There also are differences in whether paid sick leave balances need to be included with pay statements, and differences in increments an employer can require an employee to use for paid sick leave.

In New Jersey, employers can require employees to use paid sick leave in one-day blocks, Bologna said. In New York, employers can require employees to use paid sick leave in four-hour blocks. “But in other states, paid sick leave must be used in no greater than one-hour blocks.”

Certain federal contractors and subcontractors are required to provide paid sick leave benefits due to Executive Order 13706, Seidman said.

The executive order applies potentially across all 50 states, he noted. “This can lead to coordination-of-benefits challenges when the work being performed on or in connection to a covered federal contract or subcontract is taking place in a jurisdiction with a state or local paid sick leave mandate as the employer likely will need to provide employees with the most generous benefits across the multiple applicable laws.”

The various state and local laws address a wide range of topics, noted Emily Harbison, an attorney with Fisher Phillips in Houston, including:

• What employers are covered.
• What employees are covered.
• How the leave accrues, if frontloading leave is permissible, and when leave can be used.
• Whether there is carryover of unused leave from year to year.
• What the leave can be used for.
• What documentation can be required to confirm an employee’s use of leave.
• Whether payout at time of termination is required.

“Given the term ‘sick leave,’ some employers think that employees can only use the leave when the employee is sick,” Harbison said. “However, depending on the applicable law, the employee may also be able to use sick leave for routine/preventative medical appointments, care for a covered family member, and for reasons related to domestic violence or stalking. And several states have passed paid leave laws that allow an employee to take leave for any reason.”