Paid Leave Update – Important News !
Last Friday evening, the House Labor Committee passed an amended version of the House paid leave bill (H.5413) and then proceeded to amend the Senate bill (S.290) to mirror the new house bill. It appears, although anything could happen when the House and Senate come into session Tuesday, there might be an agreement to pass the two bills. While these bill have greatly improved over the original bills, there are new mandates for businesses as are outlined below.
If passed on Tuesday, the Governor is expected to sign the bill quickly. The Department of Labor and Training has indicated that it will start a series of public forums to accept recommendations for drafting regulations that will be necessary in order to govern the leave program. The public forums are expected to start this month and finish in October. Following the forums, the Department will draft a proposed rule and could either promulgate them as an emergency rule or continue through the normal formal hearing process. Obviously regulations must be completed in time to alert employers and employees, and allow employers to put in place systems for compliance.
Who’s covered and who’s not:
1. Employers with less than 18 employees are not required to provide paid time off (PTO); however they are required to give employees at least 3 days unpaid leave per year.
2. Municipalities are exempt in both versions. In June both bills included definitions for temporary and seasonal employees that inadvertently referred only to municipal employees. This problem seems to be fixed.
3. Construction companies that are operating under a collective bargaining agreement (CBA) are exempt until July 1, 2018. However, the effective date of the bill for all employers is July 1, 2018.
4. Per diem nurses are exempt.
How much PTO is required and how is it accrued:
1. The bills call for 24 hours in calendar year 2018; 32 hours in 2019; and 40 hours thereafter. The accrual is at a rate of 1 hour for every 35 hours worked. If an employer provides the minimum required hours at the beginning of the year, in a lump sum so to speak, then the employer is exempt from the administrative tracking of the legislation. However, the employer must allow the PTO to be used for every covered reason under the legislation (see below for explanation)
2. Salaried employees are considered to work 40 hours a week
3. If an employer does not provide the required number of days up front, then accrual of PTO starts at the commencement of employment (or enactment of the statute for current employees), and employees can start using it after 90 days of employment. Employees are entitled to carryover any unused time to the following year unless the employer chooses to pay the employee for unused time. The bills specifically state that an employer is not required to buy out unused time. Also, if the employee carries over unused time, the employee can still not use more than 24 hours in 2018, 32 hours in 2019 or 40 hours thereafter.
4. The bills require employees transferred from one location in the state to another to keep the amount of PTO accrued. If there is a separation of employment for 135 days or less, the employee retains the number of PTO days accrued previously. If a company is sold, the new owner must provide the retained employees the number of PTO accrued under the previous owner.
5. The bills allow employers to provide different PTO policies to different groups of employees as long as every employee receives at least the PTO levels set forth in the state law.
6. The bills establish a chart for calculating an alternative accrual system for PTO based on the average number of hours employees work per week
Employee Avg hour worked
Number Hours Accrued Per Month
How can PTO be used:
1. Temporary employees (defined as “any person working for, or obtaining employment pursuant to an agreement with any employment agency, placement service, or training school or center”) can begin taking PTO after the 180th calendar day of work, or earlier if the employer allows. Seasonal employees (defined under the federal regulation CFR 54.4980H-1(a)(38)) can use sick leave on the 150th calendar day following commencement of employment. For both Temporary and Seasonal employees, accrual begins on the first day of employment. For all other employees, PTO can be used after 90 days on the job unless the employer allows days to be used earlier.
2. The bills still use the expanded definition of “Care recipient” in addition to family members. “Care recipient” means “a person for whom the employee is responsible for providing or arranging health or safety related care…” Employees can use PTO to care for themselves, family members or if they are acting as a care recipient.
3. The bills allow employees to use PTO for their own illness or preventative care as well as someone else’s illness or preventative care, closure of the business for health emergencies, closure of an employee’s child’s school due to health emergency, domestic violence situations, sexual assaults or stalking.
4. The bills allow employers to set a minimum of 4 hours per day for PTO use, provided that minimum is “reasonable under the circumstances.” For example, if it is 3pm and the employer’s business is shut down due to a health emergency, an employer could not deduct 4 hours of PTO from an employee when that employee only had 2 hours to the end of the work day.
Notice and Documentation Provisions:
1. PTO must be provided upon the request of an employee entitled to receive it. Both versions state that if the reason for the request is “foreseeable” then the employee must provide notice in advance of use and “shall make reasonable effort to schedule the use…in a manner that does not unduly disrupt the operations of the employer.”
2. If the reason for PTO is “unforeseeable” then the employee must following the employer’s policy for notice – if one exists. If the employer does not have a policy then the employer cannot deny the request for PTO. This provision seeks to address the “No call, no show, no problem” issue.
3. The bills state that when an employee uses more than 3 consecutive days of PTO, the employer can ask for documentation as long as the employer’s written policy requires such documentation. The documentation cannot disclose the actual nature of an illness (unless required under state or federal law) or violence issue, and cannot cause an undue burden or expense on the employee.
4. Employers can require documentation of reason if the PTO request is within 2 weeks of the employee’s final day of work.
5. Both versions consider the following “reasonable documentation”: written statement by employee that a family member or care recipient is a victim of domestic violence, stalking or sexual assault; police report; court document; signed statement from victim and witness advocate saying the family member or care recipient is receiving services; a health care provider note.
Things for which PTO cannot be used:
1. Both versions disallow PTO for being late without an authorized purpose
2. If an employee is committing fraud or abuse by using PTO for other reasons than intended, the employer can discipline the employee – including termination. The same discipline applies to employees that “exhibit a clear pattern of taking leave on days just before or after a weekend, vacation, or holiday” unless reasonable documentation is provided. This is found in both versions of the legislation.
1. The House version won out in this debate which is key for the business community. The bills specifically exempt municipalities from adopting any paid leave provision other than the state’s law.
1. The bills take effect 7/1/2018.