On August 5, 2008, Ohioans for Healthy Families, a coalition supporting the Ohio Healthy Families Act (“OHFA”), submitted enough signatures to the Ohio Secretary of State to have the OHFA placed on the Ohio general election ballot for November 4, 2008. On September 4, 2008, after negotiations with Governor Strickland and other Ohio leaders, Ohioans for Healthy Families agreed to remove the OHFA from the Ohio ballot. In return, Governor Strickland and Senator Sherrod Brown have agreed to work towards similar legislation at the federal level.
The OHFA was a cause for concern to many employers for a number of reasons:
- It would have required Ohio employers with 25 or more employees to provide full-time employees with seven paid sick days and part-time employees with a pro rata amount of paid sick days. This would have created additional operation costs for many employers.
- It would have required employees to make “reasonable efforts” to schedule leave so as not to “unduly disrupt the operations of the employer” and to provide certain notices to an employer about the need for such leave. However, the “reasonable efforts” provision and notice requirements were arguably nullified by a later provision that required notice to be given an employer “as soon as practicable once the employee becomes aware of the need” for sick leave. As most employers are aware, an employee in need of a sick day to care for him/herself or a child generally becomes aware of that need the day the employee or his/her child becomes ill. Accordingly, the OHFA’s facial attempt to protect business “operations” was rather meaningless.
- It would have permitted employers to require “certification” from a health care professional of an employee’s need for sick leave only if an employee’s leave period spanned more than three consecutive days. Accordingly, the OHFA would have enabled some employees to abuse the system – using “sick leave” as paid vacation time – clearly not the intention of the Act.
During the many months in which politicians, lawyers, businesses, employee organizations, and others debated the effects of the OHFA, much concern focused on the OHFA provision entitled “Effect on Current Leave Policies.” The provision which, had the OHFA been enacted, would have been codified at Ohio Revised Code Section 4114.07, provided the following:
(A) “Nothing in this Act shall be construed to discourage an employer from the adoption or retention of a paid leave policy more generous than the one required by this Act.”
(B) “An employer with a leave policy providing paid leave options shall not be required to modify such policy, if such policy offers an employee the option at the employee’s discretion to take paid leave that is at least equivalent to the sick leave described in this section.”
(C) “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.”
Of particular concern was subparagraph (B) of the Act. It had been interpreted by some prognosticators as requiring an employer to add seven paid “sick days” in addition to paid vacation and/or paid time off that already existed under the employer's policies. For example, an expressed concern was that if an employer already had a policy that provided for ten days of paid vacation, the employer would have to add another seven days of OHFA sick leave. Apparently, the thought underlying that concern was that most vacation policies require advance notice before the time off can be taken, and that as a consequence, the existing paid (vacation) time off would not be “equivalent to” the OHFA leave. The most advisable way of dealing with such an interpretation, though, would have been for the employer to simply have implemented an all-encompassing PTO policy, rather than having designated days off for "vacation," "sick," and "personal" days. Although the prognosticators questioned whether even that would sufficiently comply with the Act, a strong argument could have been made that the intent of Section 4114.07(B) was that so long as an employer’s policy provided employees seven paid days off which an employee had the option of using for whatever purpose he/she chose (e.g., sick days, personal days, or vacation days), the employer would not have been required to add additional sick leave days.
Even Governor Strickland had concerns about this issue. In a letter to the Ohio business community dated July 30, 2008, calling for compromise between proponents and opponents of the OHFA, the governor included an attachment suggesting that new language could be added to the bill “to help assure that employers already providing paid time off to their employees will need to do little to comply with the new law.” Regardless, these issues and the concerns with the OHFA generally are over for now, with the removal from the ballot of the bill seeking to enact it.
Employers’ next battle will likely be at the federal level. As noted above, part of the concession made by Governor Strickland to the Ohioans for Healthy Families is that he and Ohio Senator Sherrod Brown will now work to encourage Congress to adopt a federal sick leave law that will apply to all states equally. Such action will likely take some time before it is debated in Congress, but it is the next front for supporters of legislation like the OHFA. According to a poll conducted by the National Opinion Research Center at the University of Chicago, 77% of respondents indicated that paid sick days are “very important” for workers.