The presidential campaign is heating up, but a different campaign is also rapidly gaining momentum: the campaign for paid sick leave. This issue has largely been a sleeping giant these past few years while attention has been focused on minimum wage legislation. Since the 2007 passage of the federal minimum wage law, national attention has been shifting toward paid sick leave.

No state currently requires employers to provide paid sick leave, although San Francisco and Washington DC do, and many states are considering this issue. For example, Ohio voters are likely to decide this issue in the fall and the California Assembly approved a paid sick leave bill this spring, although it has since been sidetracked because of its expense. A bill has also been introduced in Congress, but has been moving slowly. Demonstrating the increasing momentum of this issue, the paid sick leave campaign has spread to more than a dozen locations, with at least 11 bills introduced and one enacted and one defeated during the first half of 2008:

Click here to see table.

Common Features of Paid Sick Leave Bills

These paid sick leave bills, sometimes dubbed “Healthy Families” or “Healthy Workplace” Acts, are similar in many regards. They all call for paid sick leave, often around seven days per year (nine in California), though some call for fewer days for part-time employees or for employees of small employers. These bills most often insist on the accrual of one hour of sick leave per a certain number of hours worked (e.g., one hour of sick leave accruing for every 30 hours worked). Some bills provide an exemption for small employers while others do not.

Most bills also require completion of an initial 90-day period of employment prior to using any paid sick leave. These bills generally allow sick leave to be used for medical care, including preventive care, for an employee or the employee’s family members. Many bills also allow this leave to be used to address the effects of domestic or sexual violence. Most bills prohibit discrimination and retaliation for using or complaining about paid sick leave. They also impose various and sometimes onerous recordkeeping requirements, and many bills address under what circumstances employers may use paid time off in place of separate paid sick leave.

Although these bills are similar, the differences can be quite significant to employers. As an example, Washington DC recently passed a paid sick leave law, but only after heated negotiations led to several 11th-hour amendments to address business needs. These amendments include a requirement that employees be on the job for one year prior to becoming eligible for paid sick leave; an increased threshold (100 or more employees) to trigger seven days of paid sick leave; an exemption for certain health care workers, wait staff and student employees; and an exemption for businesses that can prove hardship. These important modifications make this law in some ways much less burdensome than many of the other pending proposals.

Disadvantages of Paid Sick Leave Laws

Paid sick leave attracts good employees in addition to other benefits, which is why many employers currently offer paid sick leave even though not required by law to do so. The disadvantages of an unfunded mandate on this issue, however, are many including:

  • This mandate detracts from a state’s ability to attract business which in turn could harm the state’s economy and the state’s workers. The differences between bills demonstrates how some bills are more burdensome and would certainly make some locations less attractive to business.
  • It forces a one-size-fits-all approach in place of flexible arrangements designed by employers to fit their specific needs. Currently, employers who are unable to afford paid sick leave may instead offer flexible schedule changes to accommodate illness or, alternatively, a higher hourly rate in place of paid sick leave. A paid sick leave mandate eliminates the flexibility to develop these creative solutions.
  • Even employers that currently offer generous leave policies will be burdened by onerous recordkeeping requirements and the need to review and revise policies. Employers may also lose the competitive advantage attained by voluntarily offering paid sick leave.
  • This mandate increases the potential for abuse by less motivated employees without providing controls to curb such abuse. The bills generally allow employees to take short periods of sick leave with limited circumstances for employer verification. It is possible, for example, that an employee may falsely claim sudden illness and take paid sick leave often on Friday afternoons an hour before quitting time. Although the bills may not intend to authorize such conduct and it seems likely courts and regulatory agencies will allow employers to take reasonable steps to monitor abuse as they can under other leave laws, the laws do not provide clear guidance for employers on this issue.

What To Do Now

Employers should be aware of any paid sick leave bills that are pending where they conduct business. They can then give input as desired and can review or implement leave policies as needed. Because this issue may be particularly susceptible to a snowball effect, employers will want to generally watch developments across the nation, with an eye currently on Ohio.

Washington DC employers also will need to review and possibly revise their leave policies prior to November 2008. Ohio employers should consider reviewing their leave policies now in order to benefit from the deference afforded by the proposed bill to certain “equivalent” policies that are in effect upon enactment. (More specific information on Ohio’s Healthy Families Act can be found here.) Because of the recent activity nationwide, other employers who have been considering a review of employee leave policies would be wise to consult counsel in determining whether and how to move forward with a proactive review at this time.