Every parent has at some point received a dreaded phone call from the school nurse that their child has a fever and needs to be picked up immediately. It always seems to happen at the most inopportune times, such as when a parent is preparing for a big presentation, sales pitch, or client meeting.
Let’s face it, at least one of your employees will need time off at some point because of a sick child or their own illness. The question that often arises is whether an employee is required to be paid for this time. The answer depends on several factors, including where the employer is located, the number of employees, the employee’s eligibility for paid time off, and the relationship of the ill person to the employee. The information below summarizes the current status of federal, state, and local laws addressing this increasingly complex issue in the modern workplace.
Currently there are no federal laws or regulations requiring most private employers to offer employees paid sick leave. There is an exception for some federal contractors that may be subject to President Obama’s executive order 13706 establishing paid sick leave for certain federal contractors.
Even though paid sick leave may not be a requirement, some employers may be subject to the Family and Medical Leave Act (FMLA). Employers engaged in commerce or any industry or activity affecting commerce that employ 50 or more employees for each working day during each of 20 or more workweeks in the current or preceding calendar year are subject to FMLA. The FMLA requires an employer to offer eligible employees up to 12 weeks of unpaid, benefits- and job-protected time off per 12-month period:
An employee’s leave time is extended to 26 weeks if the employee is the spouse, son, daughter, parent, or next of kin of a covered service member with a serious injury or illness. FMLA leave is generally unpaid time off; however, in some cases employees may be able or required to access or use paid time off for all or a portion of the leave offered by their employers.
While the FMLA may not apply to the hypothetical situation in the introduction (unless the child’s illness turns into a serious medical condition), other state and local paid sick leave laws discussed below could.
Currently, seven states—Arizona, California, Connecticut, Massachusetts, Oregon, Vermont, and Washington—and the District of Columbia require employers to offer paid sick leave. Arizona’s law is the most recent law to go into effect (July 1, 2017), and Washington’s will follow on January 1, 2018. The details—like how much paid sick leave time is required and what constitutes sick time–vary from state to state. Many of these states require paid sick leave time to include routine medical visits, including a child’s or employee’s preventive care visits.
While some states have not gone as far as to require employers to offer paid sick leave, they regulate the types of illnesses or activities qualifying for sick leave or how sick leave is administered by employers who voluntarily provide paid sick leave to employees. For example, Georgia’s recently effective law (July 1, 2017) requires employers that opt to provide sick leave to allow employees to use that time to care for an immediate family member. Similarly, Illinois law requires employers who choose to offer paid sick leave to allow the benefits to be used for a child’s medical appointments, among other things.
At least 30 local governments have enacted their own paid sick leave laws. Like state laws on this issue, how and to what companies and family members these local laws apply varies from jurisdiction to jurisdiction.
Employers in several states enjoy relief from having to comply with both state and local laws related to paid sick leave, as some states have passed laws prohibiting local governments from regulating sick leave. This reduces administrative burdens for employers with offices in multiple locations.
Whether an employer is required to provide paid sick leave will depend on several factors, including where the employer is located. Even if an employer is not required to offer paid sick leave, they may choose to offer it as an added perk for employees.
Employers are encouraged to familiarize themselves with the state and local laws and ordinances in their areas of operation. If they happen to be in a state and locality that have different requirements, generally the rule of thumb is to comply with both by applying the more generous law to employees. If there is any question about which laws apply and how they should be applied, employers should work with employment counsel to develop policies and ensure compliance.
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