In November 2006, Ohio voters enacted a statewide smoking ban by following the ballot initiative process. In November 2008, Ohio voters likely will have the opportunity to determine whether employers with 25 employees or more are required to give their Ohio employees 7 paid sick days per year.

Supporters of the proposed Ohio Healthy Families Act (the “Act") continue to gain momentum in an effort to get the paid sick leave issue in front of Ohio’s voters in the November 2008 election. Early polls suggest an approximately 65% favorable rating.

The supporters of the Act seek to require that most Ohio employers provide employees paid time off for missing work due to family health reasons. However, the Act, as drafted and if so enacted, will be costly to employers, due to the required 7 paid sick days and also the onerous administrative requirements that will plague all employers covered by the Act.

The following Question and Answer format provides a summary of the Act and its potential impact if enacted.

Summary

Q: In one sentence, what is the thrust of the Act?

Mirroring pending federal legislation, the Act seeks to guarantee full-time Ohio employees at least 7 days of paid sick leave each year and part-time employees a pro-rated

Ballot Initiative

Q: How does the ballot initiative process work?

The initiative process began with petitioners (the labor union SEIU Local 1199) submitting the text and a summary of the Act to the Ohio Attorney General. The Ohio Attorney General, on April 16, 2007, determined that the summary is an accurate statement of the actual text of the Act and certified the summary. The supporters then circulated the summary to obtain the required signatures from registered Ohio voters. Once obtained, the signatures are then filed with Ohio’s Secretary of State.

The Ohio Secretary of State’s Office then checks the validity of the signatures. If there are at least 120,683 valid signatures, the Act is presented to the Ohio General Assembly, and the Assembly then has 120 days in which to vote on the Act. If the Assembly fails to act on it, the proponents have 90 days to collect a second set of 120,683 different signatures to place the Act on the November 2008 general election ballot.

Q: What is the current status of the ballot initiative process?

The proponents intend to submit approximately 250,000 signatures for verification to the Ohio Secretary of State’s office on December 11, 2007, so that the Act can be presented to the legislature. 

Employers Affected

Q: If enacted, which employers would be affected by the Act?

It would apply to all Ohio employers - as defined by the Ohio Fair Minimum Wage Amendment - who employ 25 or more employees. The Act is meant to supplement the Family and Medical Leave Act, which generally applies to employers with 50 or more employees. 

Employee Benefits Under the Act

Q: What employees would qualify for paid sick leave under the Act?

All employees of employers that work 30 hours or more per week would receive 7 paid sick days a year. Employers would also be required to provide a pro-rated amount of paid sick leave for “employees working less than 30 hours per week or less than 1560 hours per year."

Q: Would paid sick leave carry over from year to year? 

Yes. Employees would be able to carry over up to 7 paid sick days each year. As drafted, it appears that the Act allows employees to carry over 7 days per year, with no limit as to the total bank of sick days. The carry-over option will permit employees to take longer leaves without having the financial incentive to return to work as early as medically possible.

Requesting Paid Sick Leave

Q: How must employees request the paid sick leave? 

Employees can request paid sick leave verbally or in writing, and need only provide the reason for the absences involved and the expected duration of leave.

Q: What type of advance notice would the Act require employees to give employers to use the paid sick leave?

For any foreseeable leave, employees would only be required to provide 7 days notice to employers.

If the leave is not foreseeable, the notice would only need to be given as soon as practicable once employees become aware of the need for leave. Thus, employees would be able to call at the last minute under many circumstances.

Q: When would the paid sick leave accrue?

Sick leave must begin to accumulate immediately. Employers will need to use start dates for new employees (and the date of the policy creation for current employees) to begin the leave year accumulation.

Q: When could new employees use the accrued paid sick leave?

New employees must be permitted to use paid sick leave 90 days after the commencement of employment.

Q: How is the paid sick leave counted if taken in less than a full day?

For periods of leave less than a regular workday, the employer must track leave in hourly increments. If the leave is less than an hour, the employer must track leave in the smallest increment that the employer’s payroll system uses to account for absences or use of other leave.

Q: How does paid sick leave accrue if an employee’s weekly schedule varies?

If an employee’s schedule varies from week to week, a weekly average over the 12-week period preceding the sick leave shall be used to calculate the employer’s normal workweek to determine the pro rata sick leave entitlement.

Q: What are the reasons that an employee can use paid sick leave on his/her own behalf?

Sick leave under the Act broadly includes any absence resulting from a physical or mental illness, injury, or medical condition, and an absence related to obtaining a medical diagnosis or preventative medical care.

Q: What are the reasons that an employee can use paid sick leave for the employees’ family members?

Sick leave under the Act broadly includes an absence for the purpose of caring for a child, parent (including in-laws), or spouse who has a physical or mental illness, injury, or medical condition or needs to obtain a medical diagnosis or preventive medical care. 

Medical Certification

Q: What medical certification would the Act permit employers to require from employees in order to substantiate the need for paid sick leave?

Employers may only require a medical certification for sick leave of more than 3 consecutive work days, and employees would have 30 days to provide the requested certification.

Q: Does the Act discuss confidentiality concerns related to medical information or documentation? 

Yes. All health information regarding the leave would be treated as a confidential medical record and would not be disclosed except to the “affected employee" or with the express permission of the “affected employee." The confidentiality provision is problematic, because it is not clear who will be permitted to review the medical certification without permission from the “affected employee."

Q: Who must issue the medical certification?

Any “health care professional" can issue the medical certification. A health care professional is defined as “any person licensed under federal or state law to provide health care services, including, but not limited to, nurses, doctors, and emergency room personnel."

Additional Employer Obligations

Q: What type of recordkeeping do employers need to maintain regarding the sick leave?

Employers must maintain records documenting the number of hours worked by employees and paid sick leave taken by employees for a period of 3 years. Employers must allow the Director of the Ohio Department of Commerce access to these records in order to monitor compliance.

Employers will likely need to have separate tracking systems for paid sick leave and other types of leave to ensure that they have documentation that each employee was given the full sick leave entitlement.

Q: Would employers be subject to posting requirements?

Yes. Employers would be required to post a summary of the Act in a conspicuous and accessible place of the employer.

Q: Can employers reduce existing vacation or Paid Time Off (“PTO") leave in order to comply with the law and provide 7 sick days?

No, not after the Act is enacted.

Employer Prohibitions

Q: What specific employer actions would be prohibited by the Act

Employers would not be permitted to reduce or eliminate any leave in existence at the time of the Act’s enactment regardless of the type of such leave in order to comply with the Act.

In addition, employers would be forbidden from discharging or discriminating against employees for using this sick leave or for complaining about any unlawful practice under the Act.

Q: Would employers be able to use paid sick leave usage as a negative factor in evaluating an employee’s performance or whether to promote an employee or hire an applicant?

No. Such an evaluation would violate the Act.

Q: Would employers be able to count paid sick leave as an occurrence under a no-fault attendance policy?

No. In fact, employers would have to alter their no-fault attendance policies to comply with the Act.

Employer Liability

Q: Who could bring a civil action against an employer for violating this Act?

Either an employee or the Ohio Attorney General can bring a civil action against employers to enforce the Act.

Q: What kinds of damages would an employer face for violating this Act?

Employers would be liable to affected employees for any wages, salary, employment benefits, or other compensation denied or lost to an individual employee, plus interest, multiplied by three.

Moreover, if employees have not been denied or lost any wages, salary, employment benefits, or other compensation, the employees would still be able to recover any other “actual monetary losses" that directly resulted from the violation up to a sum equal to ten days of wages or salary for the individual employee, plus interest, multiplied by three.

Employees are also entitled to attorneys’ fees if successful.

Q: What kinds of penalties would an employer face for violating this Act?

Employers would also be subject to a civil fine of no more than $100 for each separate willful violation of the posting requirement.

Negative Effects on Employers

Q: In sum, what negative effects would the Act have on employers? 

Setting aside the additional direct costs to employers to pay employees for 7 days of sick leave, the Act, as drafted, has many significant negative consequences for employers. For example:

Employers’ flexibility in dealing with time off of employees would be undercut. For instance, employers may now need to supplement PTO systems to ensure 7 days of paid sick leave and amend their no-fault attendance policies. This would add a layer of tracking for employers who offer PTO in lieu of sick leave or use no-fault attendance policies.

Employers would not be able to (a) negatively evaluate, (b) discipline, or (c) refrain from promoting due to absenteeism associated with paid sick leave.

In subsequent years, due to the carry over option, employees would be able to take longer sick leaves without having the financial incentive to return to work as early as medically possible.

Employers must wait up to 30 days for medical certification regarding the paid leave. Given the long delay, employers would have already paid for the leave and may have to wait 30 days before disciplining the employee for non-compliance.

Employers would be required to defend themselves against new legal claims by disgruntled employees.

Employers’ ability to evaluate the medical certification would be severely hampered because the health information regarding the leave cannot be disclosed except to the “affected employee" or with the express permission of the “affected employee."