woman home sick

It’s no secret that mandatory employer-provided paid sick leave has become a hot button issue in the landscape of the American economy. From Berkeley to New York City, from Washington State to Connecticut, cities, counties, and states have taken matters into their own hands, instituting a patchwork of ordinances and laws requiring employers to provide an assortment of entitlements. 

In recognition of this trend, legislators at the federal level have responded, proposing legislation of their own. On March 13, 2017, legislators on the democratic side of aisle introduced the Healthy Families Act (“HFA”). The HFA would require employers with 15 or more employees to permit each employee to earn at least 1 hour of paid sick time for every 30 hours worked, up to 56 hours (i.e. 7 days) of paid sick time per year.  The HFA, however, specifically provides that it does not preempt any state or local law that provides for greater sick leave rights.

On November 2, Rep. Mimi Walters, a Republican from California, proposed an alternate solution, with the Workflex in the 21st Century Act (“WFA”). The WFA approaches this issue by proposing to amend the Employee Retirement Income Security Act (“ERISA”), the federal law that governs employee pension, retirement, and welfare benefit plans. By amending ERISA, the WFA uses ERISA’s preemption provisions to exempt employers from complying with state and local paid leave laws, which in some cases could provide enhanced benefits to employees.

The WFA contains an opt-in mechanism – an employer has the choice of whether to participate. If the employer so elects, it must provide a minimum amount of paid sick leave, plus one additional flexible work option. The flexible work options include a compressed work schedule, biweekly work program, telecommuting, job-sharing, or a flexible or predictable schedule. In exchange, it would no longer be required to comply with local or state paid leave laws. 

To be eligible for the WFA, employees would have to have worked for the company for at least a year and for at least 1,000 hours in the prior 12 months. As with current local and state paid sick leave laws, benefits would be paid by the employer. The number of days to which an employee would be entitled varies depending on tenure and employer size, as follows (part-time employees would be eligible based on a prorated schedule.):

It remains to be seen whether either proposal will gain traction in Congress. It is evident that as the paid sick leave trend continues to march across the nation, employers are subjected to a multitude of obligations, many of which are confusing, complicated, and in some cases, contradictory. The WFA bill would appease employers who struggle with these differing laws by offering a single law with which to comply. However, local jurisdictions pride themselves in tailoring custom, local solutions for their unique economies. Whether a uniform approach will appeal to a sufficient number of our legislators is an open question, but one thing is clear: this issue isn’t going anywhere. With bills on both sides of the aisle, this topic is surely to be a fertile one for ongoing debate and discussion.

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