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Proposed regulations for federal contractors ‘ripe for abuse,’ attorneys say
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Buried in pages of proposed regulations to implement the paid-sick-leave requirement for federal contractors lies a bombshell: Paid leave may be taken to care for “close friends.”
That’s a problem, explained Sarah Gorajski, an attorney with Littler in Minneapolis, because “it’s ripe for abuse.” Under the proposed rule as written, an employee may take a paid sick day to watch a movie with a “close friend” who has a cold, Gorajski said.
The definition of who is a close friend, and for whom sick leave may be taken, will be tested in the courts, predicted Matthew Disbrow, an attorney with Honigman in Detroit.
“It could be a next-door neighbor that the employee had lunch with sometime,” Tom Rebel, an attorney with Fisher & Phillips in Atlanta and Fort Lauderdale, Fla., said. “The good news is it’s only 56 hours of paid leave a year.”
The proposed rule’s record-keeping requirements concerning which employees are eligible for paid sick leave “are so daunting, contractors may decide to grant 56 hours to all employees,” he added.
Sick Leave Requirement
The Department of Labor’s (DOL’s) Feb. 25 proposed rule noted that the seven days of paid sick leave required for each federal contractor employee each year may be used for an absence resulting from:
So who is someone whose close association with the employee is the equivalent of an immediate family relationship?
The DOL explained that the phrase has been broadly interpreted to include a:
The DOL noted that the phrase could include:
No Extensive Details About Relationship
A request for paid sick leave need not provide extensive details about the employee’s relationship with the individual for whom the employee is caring, the DOL noted.
And while a contractor may ask questions to determine if the use of paid sick leave is justified, such as asking an employee who is seeking leave to care for a close friend who was in a car accident whether that friend is someone whom the employee considers to be like family, the contractor cannot demand intimate details once the employee answers “Yes,” the DOL said. Paid leave should be provided “in a manner that is not burdensome for employees and does not allow significant intrusion into their personal lives by their employers,” the department explained.
Documentation and Medical Certification
However, a contractor may require the employee to provide reasonable documentation or a statement of the family or family-like relationship. This documentation may be a simple written statement from the employee.
Tread carefully with medical certification though, as it may not be required unless the employee has taken three full days off in a row, Gorajski cautioned.
So contractors will have to “take at face value what employees are taking sick leave for if it is less than three full days,” Disbrow noted. Additionally, contractors may “only ask for the minimum information necessary to verify the need for the leave,” he said. And employees have 30 days to provide the certification. In the meantime, employers may treat the leave as valid and may ultimately have to deduct the overpayment retroactively, which would potentially violate state law, he added.
The DOL is seeking comments on its proposed definition of the “close association” phrase, in particular whether additional specificity is necessary. Comments are due March 28.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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