Legislative Status of Proposed Act
On April 6, 2007, Service Employees International Union District 1199, a labor union which has targeted Ohio for its organizing efforts, filed a petition with the Ohio Attorney General to start the process of placing a new statute, entitled Healthy Families Act (“Proposed Act”), before the Ohio General Assembly and, eventually, Ohio voters. The Proposed Act would provide for up to seven days of paid sick leave for employers with 25 or more employees.
The Proposed Act has cleared the first two hurdles. The Attorney General must now certify the initiative petition, which will trigger the process of collecting the required 120,683 signatures to submit the Proposed Act to the Ohio General Assembly.
If the signatures are obtained, the Assembly will then have four months in which to vote on the Proposed Act. If they fail to do so, the organizers will have 90 days to collect a second set of 120,683 different signatures to place the proposed law on the November 2008 general election ballot. Ohio’s SmokeFree Workplace Act became law last year through this same process.
Summary of Proposed Act
The Proposed Act mirrors pending federal legislation, which seeks to guarantee full-time employees at least seven days of paid sick leave each year and part-time employees a pro-rated amount of leave to care for themselves and their families’ medical needs. The Proposed Act would apply to all Ohio employers—as defined by the Ohio Fair Minimum Wage Amendment—that employ 25 or more employees. Qualified employers would be required to provide:
a guarantee of seven paid sick days a year to full-time employees, and a pro-rated number of days for partemployees working 30 hours a week, or 1560 hours annually.
The Proposed Act requires that the employer make these hours available to qualified employees on their 91st day of employment. Employees would be able to use these paid sick days for any illness or physical or mental condition, to obtain a medical diagnosis, a related treatment, or preventive care, for the employee or employee’s child, parent or spouse. Employees would also be able to carry over up to seven paid sick days each year.
Notice Requirement To Use The Leave
For any foreseeable leave, the employee would be required to provide at least seven days notice to his/her employer. If the leave is not foreseeable, the notice must only be given as soon as practicable once the employee becomes aware of the need for leave. Under the Proposed Act, the employer may only require a medical certification for sick leave of over three consecutive work days; however, the employee would have 30 days to provide the certification. All health information regarding the leave shall be treated as a confidential medical record and cannot be disclosed except to the “affected employee” or with the express permission of the “affected employee.” Employers are required to post a summary of the Act in a conspicuous and accessible place of the employer and to maintain records documenting the hours worked by employees and paid sick leave taken by the employees for a three year period.
The Proposed Act provides that employers may not reduce or eliminate any leave in existence at the time of the Act’s enactment, regardless of the type of such leave in order to comply with the Proposed Act.
Employers are forbidden from:
(a) Discharging or discriminating against an employee for using this sick leave, or for complaining about any unlawful practice under the Act;
(b) Using paid sick leave usage as a negative factor for evaluating employees or applicants for hiring, promotion or discipline; and
(c) Counting paid sick leave as an occurrence under a no-fault attendance policy.
Negative Effects on Employers
Employers—even those that already provide seven or more days of paid sick leave—have significant reason to be concerned with the Proposed Act, in addition to the monetary costs of such leave, for the following reasons:
1. Employers’ flexibility in dealing with time off of employees will be undercut. For example, employers may now need to supplement PTO systems to ensure seven days of paid sick leave and amend their nofault attendance policies. This will add a layer of tracking for employers who offer PTO in lieu of sick leave or use no-fault attendance policies.
2. Employers will not be able to (a) negatively evaluate, (b) discipline for, or (c) refrain from promoting due to absenteeism associated with the seven days of paid sick leave.
3. In subsequent years, due to the carry over option, employees will be able to take longer sick leaves without having the financial incentive to return to work as early as medically possible.
4. Employers must wait up to 30 days for medical certification regarding the paid leave. Given the long delay, employers will have already paid for the leave and will have to wait 30 days before disciplining the employee for non-compliance.
5. Employers will be required to defend themselves against new legal claims by disgruntled employees.
6. Employers’ ability to evaluate the medical certification will be severely hampered because the health information regarding the leave cannot be disclosed except to the “affected employee” or with the express permission of the “affected employee.” Arguably, as drafted, an employer cannot share it with anyone within the organization who might need to evaluate the certification (e.g. human resource manager).
Setting aside the additional direct costs to employers with 25 or more employees, the Healthy Families Act, as drafted, has many significant negative consequences for employers.