Matching bills requiring employers with at least 15 employees to provide up to 56 hours of paid sick time to employees each calendar year have been introduced in Congress. Senator Tom Harkin (D-Iowa) introduced the “Healthy Families Act” (S. 631) in the Senate, and Representative Rosa DeLauro (D-Connecticut) introduced the bill (H.R. 1286) in the House of Representatives. The bill also would require employers to allow employees to carry over unused sick time from year to year, up to a maximum accrual of 56 hours. However, it would not require unused sick time to be paid upon termination of employment.
The Healthy Families Act would apply to:
- all private employers with 15 or more employees;
- any person who acts, directly or indirectly, in the interest of an employer; and
- public agencies.
Paid Sick Time Mandate
Under the proposals, employees will earn not less than one hour of paid sick time for every 30 hours worked, up to a maximum benefit of 56 hours of paid sick time per calendar year. Employees would begin to accrue paid sick time upon commencement of employment and may begin using it on the 60th calendar day after commencing employment. After the 60th calendar day of employment, the employee may use paid sick time as it is earned. Employers could allow employees to borrow unearned paid sick time.
Employees would be able to use paid sick time for far more than their own illness. Permitted purposes include:
- An absence resulting from the employee’s own physical or mental illness, injury, or medical condition.
- An absence resulting from the employee’s need to obtain professional medical diagnosis or care, or preventive medical care.
- An absence to care for a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship (collectively, “covered persons”), who has a physical or mental illness, injury, or medical condition or the need to obtain professional medical diagnosis or care, or preventive medical care; and, in the case of someone who is not a child, is otherwise in need of care.
An absence resulting from domestic violence, sexual assault, or stalking, if the time is to:
- seek medical attention for the employee or covered persons;
- recover from physical or psychological injury or disability caused by domestic violence, sexual assault, or stalking;
- obtain or assist in obtaining services from a victim services organization or psychological or other counseling;
- seek relocation; or
- take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from domestic violence, sexual assault, or stalking.
Notice and Scheduling
As under the federal Family and Medical Leave Act, paid sick time under the Healthy Families Act must be provided upon the oral or written request of the employee, and employees must make reasonable efforts to schedule paid sick time so as not to unduly disrupt the employer’s operations. The request must include the expected duration of the sick time. When the need for paid sick time is foreseeable, employees must give at least seven days’ advance notice. When the need for paid sick time is not foreseeable, employees must give notice as soon as practicable.
Employers may require that a request for paid sick time be supported by a medical certification issued by a health care provider if the period of paid sick time covers more than three consecutive days. The employee must provide a copy of the certification to the employer no later 30 days after the first day of paid sick time. An employer may not delay the commencement of the paid sick time on the basis that the employer has not yet received the certification.
Employers also may require that requests for paid sick time related to domestic violence, sexual assault or stalking be supported by documentation, such as a police report or court order, establishing the need for paid sick time.
Payment upon Termination
Employers are not required to pay employees for unused, paid sick time upon termination, resignation, retirement, or other cessation of employment.
Confidentiality and Posting
If passed, the Healthy Families Act would require employers to maintain the confidentiality of medical information and keep such information separate from employees’ personnel records.
Employers would be required to post a notice regarding the legislation’s requirements in a conspicuous place. Any employer who willfully violates the posting requirement would be subject to a civil fine in an amount not to exceed $100 per violation.
Prohibitions and Remedies
Like the FMLA, the Healthy Families Act prohibits discrimination or retaliation against employees who use paid sick time, or interference with any proceeding or inquiry. Moreover, an employer may not count paid sick time under a no-fault attendance or other absence control policy.
Employees and aggrieved individuals would have a private right of action in any state or federal court to obtain injunctive relief and damages, including wages, benefits, or other compensation lost as a result of any violation or, where wages, salary, employment benefits, or other compensation were not lost, actual monetary losses up to a sum equal to 56 hours of wages, and interest on these amounts.
Liquidated damages and equitable relief (including employment, reinstatement, and promotion) also may be awarded, and a prevailing plaintiff is entitled to recover reasonable attorney’s fees, expert witness fees, and costs.
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In recent years, legislation requiring employers to provide paid sick leave has been adopted by Connecticut and the cities of Seattle and Portland. Portland’s law goes into effect January 1, 2014. (See our articles, What Employers Need to Know about Connecticut’s Paid Sick Leave Law, Seattle Ordinance Requires Businesses to Provide Paid Sick and Safe Days to Workers, and Portland, Oregon, Mandates Employer-Provided Sick Leave.)