'Close Friends' Entitled to Take Paid Sick Leave

Proposed regulations for federal contractors ‘ripe for abuse,’ attorneys say

By Allen Smith, J.D. Feb 26, 2016
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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:

  • Physical or mental illness, injury, or medical condition. Gorajski noted that this may include an ear infection, upset stomach, ulcer, flu or headache.
  • Obtaining a diagnosis, care or preventive care from a health care provider.
  • Caring for a child, a parent, a spouse, a domestic partner or any other relation by blood or affinity whose close association with the employee is the equivalent of a family relationship and who has a medical condition or need for diagnosis, care or preventive care.
  • Injuries arising from domestic violence, sexual assault or stalking, or time taken for counseling or relocation or to take legal action, or to assist an individual in these activities.

Close Association

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:

  • Grandparent or grandchild.
  • Brother- or sister-in-law.
  • Fiance or fiancee.
  • Cousin.
  • Aunt or uncle.
  • Other relative.
  • Close friend “to the extent that the connection between the employee and the individual was significant enough to be regarded as having the closeness of a family relationship, even though the individuals might not be related by blood or formally in law.”

The DOL noted that the phrase could include:

  • An individual who was a foster child in the same home in which the employee was a foster child for several years and with whom the employee has maintained a sibling-like relationship.
  • A friend of the family in whose home the employee lived while she was in high school and whom the employee considers to be like a mother or aunt to her.
  • An elderly neighbor with whom the employee has regularly shared meals and to whom the employee has provided unpaid caregiving assistance for the past five years and whom the employee considers to be like a grandfather to her.

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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