The Healthy Families Act initiative has pushed Ohio to the forefront of a nationwide, politically charged movement to secure paid sick leave for all employees. Currently, private employers in Ohio are not required to provide paid sick leave to employees. The Healthy Families Act initiative, however, seeks to change this.

Similar to Ohio’s 2006 indoor smoking ban, the issue of paid sick leave has arisen through a proposed initiative and may ultimately reach voters. On January 4, the Ohio Secretary of State announced that proponents of the initiative had collected sufficient signatures to submit the proposed Act to the General Assembly. The General Assembly now has 120 days to enact the proposed law; if it does not do so or if it passes an amended form, then proponents may collect an additional 120,683 signatures and, after doing so, submit the proposal to voters at the November 4 general election.

The proposed Act contains numerous ambiguities and gaps that could breed litigation and cause the Act to be particularly burdensome and expensive for employers. A general overview of this Act and some major concerns are provided below. Significantly, the proposed Act provides a slight deference to employers whose policies effectively comply with the Act upon enactment, which means some employers could benefit from reviewing and updating their policies now, prior to any possible enactment of the proposed initiative.

Overview of the Proposed Act

In General: Seven Days of Sick Leave to Care for Self, Child, Parent or Spouse. As proposed, the Act applies to employers with 25 or more employees. It requires these employers to give seven days of paid sick leave annually to employees working at least 30 hours each week and a pro rata amount of paid sick leave annually to employees working fewer than 30 hours each week or fewer than 1,560 hours per year. Under the Act, paid sick leave can be used for absences due to the employee’s illness or medical care and also for absences due to the illness or medical care of the employee’s child, parent or spouse.

Accrual, Accumulation and Carry-Over of Leave. The proposed Act requires sick leave to accrue at least monthly and, after an initial 90-day waiting period, to be available for use as it is accrued. It also requires that accrued sick leave be carried over from year to year, with the caveat that “this Act shall not be construed to require an employer to permit an employee to accumulate more than seven (7) days of sick leave per year.” Significantly, this caveat suggests that employers can limit total accumulation of sick leave to seven days even if employees carry over paid sick leave; differences over this interpretation are already arising, however. This is a very large problem area in the Act that requires clarification.

Taking Leave: Request, Notice, Incremental Basis. Under the proposed Act, an employee can take sick leave upon oral or written request that gives the reason and expected duration of leave. With foreseeable leave, at least seven days’ notice is required; otherwise, notice should be given as soon as practicable. Also, employees are required to make an effort to schedule leave in a manner that does not unduly disrupt business. Leave can be taken on an incremental basis, either hourly or, if less than an hour, in the smallest increment that the employer’s payroll system uses.

Taking Leave: Certification. If paid sick leave covers more than three consecutive work days, the employer can request certification by a health care professional. In this situation, the employee must provide certification within 30 days after the first day of leave, and the employer may not delay the leave in the meantime. This certification, along with “any health information,” would be strictly regulated as to its maintenance and, significantly, its disclosure: It is “[n]ot to be disclosed except to the affected employee or with the express permission of the affected employee.”

This area of the proposed Act leads to numerous concerns, including what type of certification supports a leave, whether and how an employer can dispute a certification, whether the length of the medical certification period (30 days) undermines an employer’s ability to dispute the certification, and how to handle the extremely broad limitations on disclosure of “any health information,” which arguably is not even limited to health information attained in connection with paid sick leave. For example, does this limitation prohibit an employer from telling co-workers or customers that someone is home sick for the day, or even at work but not feeling well?

Additional Employer Requirements: Posting, Document Retention, Access to Records. The proposed Act also requires employers to post summaries of the law, subject to a $100 daily fine for willful violations, and to retain documents of hours worked and leave taken for a three-year period. Employers are required to provide access to these records to the Director of Commerce.

Additional Employer Prohibitions: Retaliation, Discrimination, No-Fault Attendance. The proposed Act prohibits discharge and discrimination in connection with the Act, including retaliation for using or making complaints about the policy; using paid sick leave under the Act “as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action”; or counting use of paid sick leave under a no-fault attendance policy.

Again, this area of the proposed Act presents many concerns for employers. The standard for discrimination as using paid sick leave as “a negative factor in an employment action” has great potential for litigation.

Enforcement and Damages. The proposed Act is enforceable in a court action by the employee or by the Attorney General. Also, the Attorney General may conduct investigations into alleged violations. Employers are subject to lost wages and benefits or, if none, actual monetary damages up to a sum equal to 10 days of wages, treble damages, reasonable attorney fees and equitable relief.

Effect on Current Leave Policies: A Reason for Current Review. Notably, the proposed Act provides that an employer is not required to modify its current paid leave policy if the current policy offers paid leave that is at least equivalent to the sick leave described. This provision suggests that an employer will not be required to modify a general “paid time off” policy, even if nonspecific to sick leave, as long as it effectively allows employees to use at least seven days for sick leave.

On the flip side, the proposed Act provides that an employer “may not eliminate or reduce leave in existence on the date of enactment of this Act regardless of the type of such leave, in order to comply with the provisions of this Act.” This provision suggests, for example, that an employer who currently provides four days of sick leave and three days of personal leave may not be permitted to modify its policy to simply provide seven days of sick leave – such a change may be considered an unlawful reduction in leave to comply with the Act. Such a result would be disturbing, not only in that it seems to extend the scope of the Act to other types of leave, but particularly in that it may effectively place a more onerous burden on employers who have been voluntarily offering paid leave to employees. Employers in this situation may end up with a convoluted mix of leaves and tracking systems.

Because of these two provisions, “paid time off” policies, rather than individual leave policies, may be better suited for some employers. Also, it may be advisable for employers to review their leave policies currently, before the possible enactment of the Healthy Families Act, and make desirable changes at this time.

In Conclusion: The Bigger Picture

Ohio is certainly not alone in facing the Healthy Families Act initiative; the issue of paid sick leave is being pursued nationwide. San Francisco already has in place a voter-approved paid sick leave ordinance, and the Washington, D.C., City Council recently approved the initial version of a similar bill and will vote on it again in March. Many states also have similar bills pending, and a similar Healthy Families Act has been introduced at the federal level for the third time. Despite two previous failures, the federal bill is expected to receive more attention this year because of the presidential race.

Because of Ohio’s initiative process, which will likely result in this issue heading to the polls if the General Assembly takes no action, the Healthy Families Act initiative in Ohio is being watched especially closely. From a political standpoint, the timing – perhaps not coincidentally – is interesting as well, in that this issue may draw a larger number of Democrats to the polls during a presidential-election year in a key state.