By: Johanna T. Wise and Joshua D. Seidman

Last week, the momentum gained by mandatory paid sick leave laws in 2014 carried the conversation to the White House as President Barack Obama announced his renewed support for a federal bill known as the “Healthy Families Act” (“Act”) (S. 631/H.R. 1286).  The Act, which was introduced in 2013, is still far from becoming law given Republican control of Congress.  If passed, however, the Act would require many private employers to provide employees with one hour of paid sick time for every 30 hours worked, with a minimum accrual requirement of 56 hours of leave per year.  Specifically, the Act applies to (a) employers that employ 15 or more employees for each working day during at least 20 workweeks in either the current or preceding calendar year, (b) any person who acts, directly or indirectly, in the interest of an employer, and (c) public agencies.

Interaction With State and Local Paid Sick Leave Laws

As we previously reported, in 2014 the total number of mandatory paid sick leave laws in states and cities around the country increased from five to 21.  Notably, the Healthy Families Act’s 56-hour minimum accrual requirement is more demanding than many of the existing state and municipal paid sick leave laws.  For instance, California’s paid sick leave law requires employers of all sizes to allow covered employees to accrue at least 48 hours of paid sick leave per year, while Massachusetts’ paid sick leave law requires employers with 11 or more employees to provide up to 40 hours of paid sick leave per year.

The Act expressly states that it will not “be construed to supersede (including preempting) any provision of any State or local law that provides greater paid sick time or leave rights.”  Accordingly, employers subject to an existing paid sick leave law would be required to comply with the most pro-employee aspects of both the Healthy Families Act and the applicable state or local law.

Key Provisions of the Healthy Families Act

Use and Carry Over of Sick Time: Under the Healthy Families Act, employees would begin earning paid sick time at the start of their employment, and could start using accrued time 60 days thereafter.  The Act also mandates that employers allow employees to carry over accrued, but unused sick time from one year to the next.  Despite the carry over, employers would still not be required to allow an accrual of more than 56 sick leave hours in any single year.

As with many of the current paid sick leave laws, employees would be able to use paid sick time for absences related to their own physical or mental illness, injury, or medical condition, or the need to obtain professional medical diagnosis or care, or preventive medical care.  In addition, paid sick time could also be used for:

• 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, 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; and
• Certain absences resulting from domestic violence, sexual assault, or stalking.

Payment at Termination: When an employee’s employment relationship ends, whether by termination, resignation, retirement, or otherwise, the employer has no obligation to reimburse the employee for accrued, but unused sick time.

Notice and Scheduling: Paid sick time shall be provided upon the oral or written request of an employee.  An employer can require seven days’ advance notice if an employee’s need for sick leave is foreseeable.  If the need for sick leave is unforeseeable, however, the employer may require an employee to give notice as soon as practicable.

Medical Certification: Employers can require an employee to provide a medical certification issued by a health care provider if the leave period covers more than three consecutive workdays.  The employee must submit such certification within 30 days after the first day of the leave period, but employers are not to delay the leave because they have not yet received the certification.

Confidentiality: Employers cannot disclose or otherwise breach the confidentiality of medical information obtained about an employee or his or her family members.  As with other medical records, this information must be maintained in a separate file from other personnel information.

Notice and Posting: Employers will need to post a notice describing certain requirements of the Act in a conspicuous place or in employee handbooks.  Violation of this requirement may result in a civil fine of up to $100.

Prohibited Acts: Employers cannot interfere with, restrain, or deny an employee’s exercising of his or her rights under the Act.  In addition, employers cannot discriminate or retaliate against an employee for exercising such rights.

Record Retention: Employers must also maintain records pertaining to compliance with the Act.

Enforcement: If passed, employees will have a private right of action in any Federal or State court of competent jurisdiction against an employer for violating the Act.  Employees may be entitled to damages, including wages, salary, benefits or other compensation lost due to the violation, and equitable relief, such as employment, reinstatement, and promotion.

What This Means for Employers

In response to the fluid landscape of paid sick leave laws, employers are wise to review their current policies and ensure that they comply with the requirements of any applicable laws.  Moreover, while the Healthy Families Act is unlikely to advance in the near future, President Obama’s endorsement and his plan to include $2.2 billion in funding to assist states develop leave programs certainly add more fuel to an already burning fire, making it even more essential for employers to remain aware of paid sick leave developments in 2015.

For additional information on paid sick leave laws, contact the authors, any member of Seyfarth’s Absence Management and Accommodation Team, or your Seyfarth attorney.