Question:

I own a small business and have heard about new laws requiring I give my eight employees paid sick leave. Is this true?

Answer:

Not yet, but it could be soon. While California employers outside of San Francisco County need not provide employees with paid sick leave, proposed state and federal legislation would require all employers, regardless of size, to do so.

This past year Assembly Member Fiona Ma (D-S.F.) introduced the Healthy Workplaces, Healthy Families Act of 2009 (AB 1000), which was modeled after a San Francisco ordinance enacted in 2006. The proposed law would require all California employers to provide employees with at least one hour of paid sick leave for every 30 hours worked and to carry over unused sick leave from year to year. As proposed, employees of small businesses (10 or fewer employees) could amass and use up to 40 hours (5 days) a year of sick time; all other employees could gather and use up to 72 hours (9 days). Under this bill, accrued paid sick leave would roll over but remain subject to those annual caps. Although the bill died during the recent state budget negotiations, it enjoys significant political support and is sure to be revisited by Sacramento lawmakers.

In Washington, D.C., Congresswoman Rosa DeLauro (D-CT) reintroduced the Healthy Families Act (“HFA”), H.R. 2460, and Senator Kennedy (D-MA) introduced the companion bill, S. 1152, in the Senate. As proposed, HFA would require employers with 15 or more employees working 20 or more calendar workweeks in a year to provide full-time employees one hour of paid sick leave for every 30 hours worked, with a maximum of 56 hours (7 days) leave earned per year. Part-time employees working more than 20 hours per week would receive a prorated share of paid leave. Exempt employees would be assumed to work 40 hours a week unless they ordinarily work less hours, in which case they would accrue leave time based on the number of hours actually worked. H.R. 2460 is currently before the House Education and Labor, Administration, and Oversight and Government Reform committees, while S. 1152 has been referred to the Senate Health, Education, Labor, and Pensions’ committee. Although many bills die in committee, President Obama’s support for the legislation and Democratic control of Congress bodes well for its eventual passage into law.

Under both the proposed federal and state laws, employees could use time off to obtain medical care, including preventive care, for themselves and other family members. Employees could also take paid time off for absences related to domestic violence, sexual assault or stalking. Under the proposed laws, employers would be subject to substantive recordkeeping and notification requirements.

While the proposed laws may be well intentioned, their passage will impose additional obligations for employers already subject to a costly and contradictory maze of state and federal paid and unpaid leave laws. For example, under the federal Family and Medical Leave Act (“FMLA”), employers who have 50 or more employees must provide unpaid leaves of absence for serious health conditions, while the HFA would mandate paid leave for employers with 15 or more employees and the Healthy Workplaces, Healthy Families Act would require paid sick leave for all employees regardless of employer size. Further, under the FMLA regulations, unless complications arise, the common cold, flu, earaches, upset stomach, headaches, etc., are not defined as serious health conditions for which unpaid leave must be provided. Since there is no requirement that health conditions under the HFA be “serious,” far more medical problems will likely qualify for paid HFA leave than for unpaid FMLA leave. A primary concern for employers will be how to reconcile the various laws’ differing accrual, use and certification standards, and the fact that some leave is paid while other leave may not be.

Employers will have to wait and see how these bills develop and, if passed into law, what regulations will be established for their implementation and administration. However, currently there is no requirement that employers outside of San Francisco County provide paid sick leave to employees.
– – – – – – – – – – – – – – – – – – – – – – – – – –
Back to Menu- Work Place Law 2009 Articles