By: Martha J. Cardi, Esq. and Megan G. Holstein, Esq.

Employers should be ready for the big trend in leave of absence legislation: paid sick leave.

According to the White House, approximately 40 percent of private-sector employees work at a company that does not offer sick pay for their own illness or injury.  Low- and middle-income workers are much less likely to be offered paid sick leave than highly paid workers.  Last fall, the Administration announced its support for the Healthy Families Act.  This legislation would allow millions of working Americans to earn up to 7 days per year of paid sick time, which they could use to care for themselves or for a sick family member.  See the Obama Administration Initiatives Fact Sheet .

One state, Connecticut, has already enacted legislation that requires employers to offer paid sick leave to cover employees’ absences due to illness or injury and preventative care.   Since January 2013, 14 additional states have proposed paid sick leave laws, and there are currently two proposed federal paid sick leave laws.

Municipalities are in the act also.  In the past few years, San Francisco, Washington D.C., and Seattle have enacted such laws. New York City is on the verge of passing a sick leave law.  In some instances, however, a city’s move to enact sick leave laws has not been successful: Milwaukee passed such a law but the state legislature preempted it with a state law prohibiting local governments from imposing employee leave requirements that are more strict than the state law.  Philadelphia also passed a paid sick leave law but the Mayor is expected to veto it.

Many laws require paid sick leave AND paid safe leave.Many of the new or proposed federal, state, and municipal laws provide paid leave for more than just employee or family illnesses.  The current trend includes leave for preventive medical care and wellness checkups.  In addition, many of the laws also provide time off if the employee or a family member is a victim of such crimes as domestic violence, sexual assault, stalking, or harassment.  These laws are often referred to as “sick and safe leave.”

Portland’s new ordinance discussed below is an example of a paid sick and safe leave, although its title is simply “Portland Sick Time.”

Portland. The most recent city to enact a paid sick leave law is Portland, Oregon.  The new ordinance, effective January 1, 2014, will require employers to provide paid sick and safe leave, called Portland Sick Time (PST), to employees who perform work in Portland.    Below is a summary of Portland’s ordinance:

Covered Employers:

All employers with employees located in Portland must comply with the new law, even if the employer is not located in Portland.  If the employer has even a single eligible employee who performs work in the city, the employer must offer PST to that employee.

Eligible employees:

An employee is eligible if the employee works more than 240 hours per year in the city of Portland. This includes time spent by a person who travels to Portland to work, works in a Portland office or facility, or stops in the city during the course of the employee’s work.

Amount of sick time:

Employers must provide 1 hour of PST for every 30 hours of work within Portland.  If the employer has five or fewer employees at any location then the PST can be unpaid.  If the employer has 6 or more employees at any location, then PST must be paid leave.

An employee begins PST accrual 90 days after the commencement of employment.  Employees can use up to 40 hours of PST per year and in increments as small as one hour at a time.

Employees can carry PST over from year to year, but employers can cap PST accrual at 40 hours per year.

Reasons for Portland Sick Time

Employees can use PST for any of the following reasons:

  • Treatment of an employee’s or a family member’s mental or physical illnesses, injuries, health conditions, or preventative care.  This includes pregnancy, childbirth, postpartum care, and preventative medical care.
  • Leave allowed under the Oregon Victims of Certain Crimes Leave Act, covering activities related to domestic violence, sexual assault, stalking, or harassment;
  • Because the employer’s business or the employee’s child’s school or child care facility closes for a public health emergency;
  • A family member is determined to be a risk to the health of others and needs assistance;  or
  • The employer is required by state law to exclude the employee from the workplace for health reasons.

Interaction with Employer policy

If an employer policy or collective bargaining agreement already provides time off such as paid sick time that is equivalent to PST, then the employer does not need to provide additional PST.

Verifying the need for PST

An employer can require verification of the employee’s use of PST in order to investigate a pattern of usage of unscheduled time off. If an employee is absent for more than 3 consecutive days on PST, the employer can also require verification that the absence was used for one of the PST approved reasons.

Don’t ignore the trend!

Employers should stay alert in the places they do business and be prepared to offer paid sick leave to their workforce.  It is difficult to adhere to a patchwork of state and municipal requirements (and soon, maybe federal). To date, however, most paid sick leave laws offer a safe harbor exception to employers who already offer paid sick time to employees that cover absences for the same reasons and in at least the same amount as the law or ordinance.  In addition, paid sick leave will overlap with other state and federal-mandated unpaid leave of absence laws, such as the federal FMLA.

The wave of paid sick leave is coming to a municipality near you!  Whether you are on the East Coast, West Coast, or in the heartland, employers who do not already do so are encouraged to offer a paid sick leave benefit.  Soon sick and safe leave will likely be required by major cities in which you do business.  Get ahead of the wave and ease into this benefit at your company’s own pace.

For more information please call 866-218-4650.  Click here to access a free 14-day trial of Leave of Absence Advisor™, including the Pending Legislation feature.

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