Some claim that paid sick leave isn’t just a nice benefit, but a human right. Others claim that requiring private employers to provide paid sick leave kills jobs and makes it difficult for businesses to compete. This article takes no position on that debate. Rather, it recognizes the reality that since 2011, Arizona, California, Connecticut, the District of Columbia, Illinois, Massachusetts, Oregon, Vermont and Washington have passed laws requiring employers to provide their employees with paid sick leave. In addition, dozens of cities, counties and municipalities outside of the above referenced jurisdictions have passed similar laws. Further, several states, most recently Maryland in March 2017, have passed mandatory sick leave laws that take effect in the near future. No matter which side of the debate you are on, the fact remains that many private employers are already required to provide their employees with paid sick leave, and in the years to come, many more employers will have to do so.
These new laws have not been passed in a vacuum. Employers have already implemented a combination of sick leave and paid time off policies for their employees that may or may not be deemed to be as generous as those required by law. Nevertheless, sick leave laws may affect more than an employer’s sick leave policies. Depending on the jurisdiction, such laws dictate:
a) the reasons, in addition to an employee’s own illness, that he or she must be allowed to use paid sick leave;
b) the amount of sick leave an employee must be allowed to accrue;
c) the rate at which an employee must accrue sick leave; and
d) how much unused sick leave an employee is allowed to carry over from one year to the next.
Many of these laws also have safe harbor provisions that allow an employer to satisfy the dictates of the law with its existing policies so long as it provides its employees with sick leave that is as generous as that required by law. However, satisfying the safe harbor provision may be easier said thandone. For example, an employer who already provides a sufficient amount of sick leave to its employees may fail to satisfy the safe harbor provision because its policy conflicts with required accrual or carryover provisions.
The question is, how can private employers with established leave policies best prepare themselves for the increasingly likely event that they may soon be subject to a local, state or federal sick leave mandate? The best course may be for employers with existing leave policies to consider drafting separate sick leave policies apart from the other paid leave they may provide for vacation, personal time or other reasons. Currently, mandatory paid sick leave laws are a hot legislative initiative. The same cannot be said for other paid time off employers regularly provide their employees. As such, employers can insulate the remainder of their paid leave policies from the restrictions that apply to sick leave by drafting standalone sick leave policies separate from the other paid time off they may offer. This course of action has two key benefits. First, using this strategy allows employers to easily modify their sick leave policies in the future without interrupting their entire paid leave scheme. Second, this strategy also allows employers to craft non-sick leave policies that fit the needs of their business free from restrictions that apply to sick leave policies.