Employment Law Newsletter: Top 5 Tips for Complying with Sick Leave Laws

As 2017 gets underway, one trend we expect to continue is the proliferation of paid sick leave laws across the country. While there are no federal laws that require employers to provide paid sick leave, states, cities and counties are increasingly requiring private employers to offer time off from work with pay for these purposes. In addition, Executive Order 13706 issued in 2015, requires certain employers that contract with the Federal Government to provide covered employees with paid sick leave on an annual basis. Although there are common features among many of these sick leave laws, each law includes its own unique requirements, and multi-state employers face challenges in ensuring their policies and procedures remain compliant, yet consistent and easy to administer.

This article will provide our top 5 compliance tips for employers subject to sick leave laws. In addition, we have included a list of the states, cities and counties that have enacted paid sick leave laws as of January 1, 2017 for easy reference.

Tip #1: Use Your Existing Paid Time Off (PTO) or Vacation Policies to Satisfy Sick Leave Law Requirements.

If your company is subject to a sick leave law, you typically have two options: (A) create a new sick leave policy to meet the requirements of the law; or (B) if you already offer paid leave to your employees (such as vacation or PTO), ensure that you meet the requirements of the sick leave law through your existing policies. To take the latter approach, your existing policies must satisfy the requirements of the sick leave law and be at least as favorable and generous to your employees in all respects. For example, if your company’s PTO policy provides that employees must use PTO in 4 or 8 hour increments, but the applicable sick leave law states that employees can use sick leave in 1 hour increments, you will need to change your PTO policy to allow for use of PTO in 1 hour increments. Similarly, if your employees currently accrue PTO at 1 hour for every 40 hours worked, but the sick leave law provides for accrual at the rate of 1 hour of sick leave for every 30 hours worked, you would have to modify your PTO policy to allow for accrual at the rate of no less than 1 hour for every 30 hours worked to provide the more generous accrual rate to your employees.

Unfortunately, some multi-state employers may not be able to create a universally applicable PTO or vacation policy for all employees due to the variations in sick leave laws from one jurisdiction to another. In such cases, employers should either draft separate sick leave policies or create exceptions to their general policy for affected employees.

Tip #2: Beware of Broad Coverage – Sick Leave Laws Are Broadly Applicable and Can Apply in Surprising Circumstances.

One important common feature of sick leave laws is broad coverage for almost all employees. While many employers provide PTO and vacation only to full-time employees, sick leave laws often provide that virtually all employees must receive sick leave benefits, including not only full-time employees, but also part-time, temporary and per diem workers. As a result, employers who use their PTO and vacation policies to satisfy sick leave requirements (see Tip #1) will need to ensure they address sick leave for workers excluded from PTO and vacation eligibility.

In addition, many sick leave laws provide coverage to employees who may only temporarily work in a certain location, creating a potential pitfall for unwary employers. For example, New York City’s Earned Sick Time Act requires even employers based outside of New York City to provide sick leave to covered employees who work more than 80 hours per calendar year in New York City. As another example of the broad application of sick leave laws, California’s Healthy Workplaces, Healthy Families Act provides paid sick leave to employees who work for an employer for just 30 days within a year in California.

Tip # 3: Don’t Neglect Notice and Recordkeeping Requirements.

Many sick leave laws require employers to post various notices in the workplace about the sick leave laws applicable to their business and to also provide employees with various disclosures and information about administration of sick leave policies. Sick leave laws often also specify minimum periods for record retention, including documentation of hours worked and payroll records. Employers should ensure appropriate notices and disclosures are provided to their employees and modify record retention policies as needed to comply with sick leave laws.

Tip #4: Avoid Potential Retaliation Claims.

Employers should do their homework before denying sick leave requests, requiring advance notice and medical documentation for sick leave, or disciplining employees for suspected abuse of sick leave. If an employee requests sick leave for a qualifying reason under the applicable sick leave law, employers generally cannot deny the leave request. In addition, many sick leave laws limit the amount of advance notice that can be required for planned sick leave and provide that notice only needs to be provided as soon as practical for unforeseeable sick leave. Similarly, employers are limited by some sick leave laws as to when they can request medical documentation to substantiate the need for leave. For instance, several jurisdictions permit the employer to request medical documentation only after the employee takes 3 consecutive workdays of sick leave.

Employers should also be mindful of non-discrimination and non-retaliation provisions in sick leave laws. Disciplining or taking adverse action against employees who request or use paid sick days may result in a complaint or potential legal action against the employer depending on the circumstances.

Tip #5: Don’t Forget Obligations Under Other Laws.

Employment laws often overlap and can create conflicting obligations for employers. When administering your sick leave policies, make sure to consider whether any other laws or company policies apply to your employee’s situation. For instance, an employee with a serious illness who requests sick leave may also be eligible for leave under the Family and Medical Leave Act. An employee injured in a workplace incident may be eligible for benefits and entitled to various protections under applicable workers’ compensation laws. When more than one law applies to a particular situation, the general rule of thumb is to provide what is most beneficial to the employee.

As mentioned above, states, cities and counties are enacting sick leave laws on an increasing basis, and we expect this trend to continue under the new administration. Due to the complexity of sick leave laws, employers are encouraged to consult with their employment attorneys and advisors to navigate their way through these sick leave laws and to ensure continued compliance.

List of Jurisdictions With Enacted Sick Leave Laws (as of 1/1/17)

State and District-Wide Sick Leave

• Arizona
• California
• Connecticut
• Massachusetts
• Oregon
• Vermont
• Washington
• Washington, DC

Cities/Counties with Sick Leave Laws

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NOT LEGAL ADVICE: This publication is not to be considered specific legal advice and should not be relied upon in lieu of advice from an attorney. Each client’s situation is unique, and if you have need for legal advice, you should seek advice from an attorney.