By Nicholas J. Fiorenza, Managing Partner & PIA Association Counsel, Ferrara Fiorenza PC
Our members and Firm clients generally are still struggling somewhat to find the best compliance strategy for this new law. In a nutshell, employers must decide whether to simply increase the paid time off they already provide, or instead adjust their existing PTO banks to reach a “neutral” or reduced level of benefit. The law, however, permits paid time for many reasons beyond typical “sick leave”, and provides very little in the way of employer rights to documentation or even monitoring of use.
Plus, we are not yet certain of the rules of the road for this statute. We are watching closely for promised state guidance. As of now, we know that employers should have begun accruing the benefit for their employees effective September 30. We know that paid time off is accrued at one hour of paid leave for every 30 hours actually worked by an employee for most employers; employers with 100+ employees will have to provide up to 56 hours of paid leave.
One of the things that makes this law extremely problematic is the many uses for the leave. While it is billed as a paid “sick leave” law, its uses go far beyond what is generally encompassed by this term. The time accrued may be used for:
- The employee’s own mental or physical illness, injury, or health condition, including diagnosis, care, preventive care, or treatment.
- The mental or physical illness, injury, or health condition of the employee’s family member, including diagnosis, care, preventive care, or treatment.
- For a number of reasons related to domestic violence, a family offense, sexual offense, stalking, or human trafficking regarding the employee or employee’s family member. An employee who is the perpetrator of the offense is not entitled to take leave, regardless of the family relationship.
Employers without unions can take advantage of a provision in the law which allows existing policies to satisfy the requirements where such policy meets or exceeds the law’s obligations for the amount of leave, how it may be used, the accrual provisions, and carryover rules. (These carryover rules are difficult as well, because as written employees may carryover unused sick leave into the following calendar year so long as the total amount of leave does not exceed the statutory maximum).
In any event, non-union employers can amend their policies to meet these statutory obligations and not, at least in total, simply add more time off to what is already been allotted employees. So, we recommend that employers consider how the leave will be applied in the non-union environment carefully, because there is flexibility here.
For employers with unions, however, the challenge is greater. For example, even though labor contracts may provide generous time off, and there may also be an attendance and FMLA policy providing significant protections for disabling conditions, such contracts generally do not reflect all of the required elements of the law. Thus, as things now stand, many unionized employers will be obligated to provide this new sick leave benefit in addition to its other time off policies and protections.
And, unionized employers must keep in mind that any changes to existing time off structure and any decisions made with respect to these legal obligations are mandatory topics of bargaining. One example is the law’s option that employers may award leave as it is accrued or “frontload” leave at the beginning of each calendar year by providing employees with the total amount of sick leave that would accrue during the year.
It is also necessary to now consider how this new sick leave benefit will interact with Paid Family Leave and FMLA. For example, in some cases where leave to care for a family member is involved, an employee may choose to use paid sick leave and receive their full pay. This would leave their PFL entitlement intact and available to them for future use.
We need more guidance from the state, but no matter how you analyze this law, it is likely that more absences and greater direct personnel costs will be the result.
For Human Resources Assistance:
For more information on any of the above topics, or assistance with any employment-related matter, contact Nick Fiorenza, Association Counsel, Ferrara Fiorenza PC, (315) 437-7600, firstname.lastname@example.org.
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