July 09, 2009

The U.S. House of Representatives has introduced legislation that would require all employers with 15 employees or more to provide up to seven paid sick days each year.  The bill, titled the Healthy Families Act (H.R. 2460), was introduced by Representative Rosa DeLauro (D-CT).

The proposed legislation, introduced on May 18, would affect most employers’ paid time off (PTO) policies.  Employees would be entitled to accrue one hour of paid sick time for every 30 hours worked, up to a total accrual of 56 hours — or seven days — of paid sick time.  Employees would begin accruing hours as soon as they start working for a covered employer and could begin using the accrued time 60 days from their first day of work.  Paid sick time would carry over from one year to the next, but under the bill, employees would not be able to accrue more than 56 hours at any time.

Employees would be entitled to use paid sick time:

• for their own physical or mental illness, injury, or medical condition;
• to obtain medical care, including preventive care; and
• to care for, or help obtain medical care for, a child, parent, spouse, or “any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”

The Healthy Families Act would also provide paid sick time for absences related to domestic violence, sexual assault, or stalking, including time spent seeking medical attention, obtaining counseling services or relocation assistance, and pursuing legal action.

The proposal includes procedures for employees requesting paid sick time.  Employees would have to “make a reasonable effort to schedule a period of paid sick time… in a manner that does not unduly disrupt the operations of the employer.”   Employers would be entitled to request medical certifications if an employee is out more than three consecutive days.  Employers with existing paid leave policies that are equivalent to, or more generous than, the proposed legislation would not have to change their rules. 

Employers would have to post notices of employees’ rights and are prohibited from interfering with the exercise of such rights under the bill.  Any employer who willfully violates the posting requirements may be subject to a civil fine not to exceed $100 for each separate violation.  The Department of Labor would have enforcement authority and employees would have a private right of action to sue their employers.  Violations of the Healthy Families Act may subject employers to liquidated damages and equitable relief, and a court may award the plaintiff reasonable fees and costs.  Should the Act become law, it would take effect six months after the issuance of DOL regulations.

Rep.  DeLauro introduced the bill the same day as the Center for Economic and Policy Research released a report finding that out of 22 countries studied, the United States is the only one “ranked highly in terms of economic and human development… that does not guarantee that workers receive paid sick days or paid sick leave.”

The Healthy Families Act would add to an already complex mix of paid and unpaid leave laws.  Should it be enacted, employers will have to coordinate administration of paid sick days with other overlapping responsibilities mandated by federal and state family and medical leave and disability laws.  The federal Family and Medical Leave Act, for example, requires employers with at least 50 employees to provide eligible employees up to 12 weeks of unpaid leave during a 12-month period for the employee’s own serious health condition or to care for a child, spouse, or parent with a serious health condition.  Although FMLA leave is unpaid, an employee may receive compensation during unpaid FMLA leave by using sick days, vacation time or other accrued leave.  The Healthy Families Act would apply to many smaller employers not currently covered by the FMLA.  It also would apply to individuals working at small worksites who are not currently “eligible employees” under the FMLA.  The circumstances under which paid sick days would be available under the Healthy Families Act also are broader than the circumstances where employees may be entitled to leave under the FMLA.  It appears, for example, that individuals could receive paid sick leave under the Healthy Families Act to attend or take covered family members to medical appointments for conditions that are not “serious health conditions” under the FMLA.  Absences related to domestic or sexual violence and stalking also are not currently covered under the FMLA.  Under the bill, covered family members also appear to include domestic partners which, again, currently are not covered under the FMLA.

A companion bill reportedly will be introduced in the Senate by Senator Edward Kennedy (D-MA).  Similar legislation introduced in previous sessions of Congress included a “lock-in” provision that would prohibit employers from modifying their leave benefits upon enactment and a “cash-out” provision that would “reimburse” employees for unused paid sick leave upon separation from the employer.  These provisions are not included in the H.R

© 2007 Jackson Lewis LLP. Reprinted with permission. Originally published at www.jacksonlewis.com. Jackson Lewis LLP is a national workplace law firm with offices nationwide.