The new trend toward mandatory paid leaves are making some employers queasy
By Lisa Grosz, UI Legal Expert
New York is in the midst of passing the most liberal, or strongest, based on your company size and industry, Paid Family Leave. FL should not be confused with FML Family Medical Leave). The “M” makes the difference here. Medical leave allows for a leave sheltered from a no fault attendance or point accumulation system. If you have an old school absenteeism policy the point (pun intended) is the same. Medical leave requires a serious health conditions that requires or results in medical documentation of either an overnight stay in a medical facility, or ongoing treatment by a health care provider. What is on the horizon now is a trend toward paid leave programs for miscellaneous reasons not necessarily involving a medical illness.
What starts in New York does not stay in New York. It seems the mid-Atlantic region follows suit. All of us in HR or related fields should pay attention to what is passes in New York in the upcoming months. In the case on NYC Employers’ payroll costs will not be affected. “The weekly PFL benefit will be financed solely through employee payroll deductions of up to 45 cents a week in the first year. In subsequent years, New York’s Superintendent of Financial Services will determine the amount of employee contributions based on the cost per worker of providing PFL through the state insurance fund. The cost of raising the TDI benefit level will continue to be shared, as in the current TDI program, by both workers and employers.”
It has always argued that wording such as this seems to become a trickle down cost to employers at the end of the day. It may not be impacting employers immediately but in the form of taxation it usually does.
I have assembled a few charts that outline the states that already afford for paid family leave. It becomes confusing as some states do not act in unison. There are cities within states that have a wording and requirements outside of the general state laws, such as California’s. (see chart below, links to site are included).
New York Passes Nation’s Strongest Paid Family Leave Program
Working families should never have to choose between caring for their loved ones and keeping their paycheck.
Led by Governor Cuomo, New York’s recently passed 2016-17 State Budget includes a landmark paid family leave policy – the longest and most comprehensive in the nation – to help workers maintain financial stability while taking time to care for a family member.
When fully phased-in, employees will be eligible for 12 weeks of paid leave when caring for an infant, a family member with a serious health condition or to relieve family pressures when someone is called to active military service.
Establishing paid family leave marks a pivotal next step in the pursuit of equality and dignity in both the workplace and home.
For more information on the proposal visit:
California Already Mandates PSL
California’s mandatory paid sick leave law (Healthy Workplaces, Healthy Families Act) is up and running. Beginning July 1, 2015, employers had to start providing the paid sick leave (PSL) benefit to their employees.
Areas in California and various states and cities requiring Paid Sick Leave (PSL)
- Emeryville, California
- Oakland, California
- San Francisco, California
- Portland, Oregon
- District of Columbia
- New Jersey cities of Bloomfield, East Orange, Irvington, Montclair, Newark, Passaic, Patterson, and Trenton
- Jersey City, New Jersey
- Seattle, Washington
- Tacoma, Washington
- New York, New York
- Montgomery County, Maryland
In California, a state law mandating paid sick leave fully went into effect on July 1, 2015. This new law provides employees who work in California for 30 or more days within a year from the beginning of employment with paid sick leave. Employees, including part-time and temporary employees, will earn at least one hour of paid leave for every 30 hours worked. An employer may limit the amount of paid sick leave an employee can use in one year to 24 hours or three days. Accrued paid sick leave may be carried over to the next year, but it may be capped at 48 hours or six days. However, this law will not apply to employees covered by qualifying collective bargaining agreements, In-Home Supportive Services providers, and certain employees of air carriers.
Effective July 1, 2015, Emeryville’s city ordinance requires paid sick leave for most employees working within the city limits. Employees of small businesses (55 or fewer employees) may accrue 48 hours of paid sick leave a year, and employees of large businesses (56 or more employees) may accrue up to 72 hours a year. Employees may use the paid sick leave to care for their own illness or condition, a family member’s illness or condition, or their designated individual. Additionally, the employee can use this leave to care for a service dog.
Oakland employees accrue paid sick leave at the rate of one hour for every hours worked. Small businesses (fewer than ten employees) may cap accrued sick leave at forty hours, and all other businesses may cap accrued sick leave at seventy-two hours. Employees may use their leave to care for themselves or an immediate or extended family member. Additionally, employees who do not have a spouse or registered domestic partner are given a ten day designation period after accruing the first hour of sick leave in order to designate an individual they would like to be covered under this policy.
San Francisco, California
Under the San Francisco Paid Sick Leave Ordinance, employers must provide paid sick leave to every employee who performs work either full or part-time in San Francisco. Paid sick time begins to accrue 90 days after the employee’s first day of work. Employees earn 1 hours of paid sick leave for every 30 hours of work. Sick leave is calculated in hour-unit increments, not in fractions of an hour. For employers with less than 10 employees, the required paid sick leave is capped at 40 hours. For employers with 10 or more employees, paid sick leave is capped at 72 hours. Sick leave time earned does not expire and carries over to the next year. However, an employee can use as many sick leave hours in one year as they wish, so long as they have not reached the total cap. Sick leave can be taken for illness, injury or to seek medical treatment or diagnosis for the employee, a family member or other designated person. If the employee does not have a spouse or registered domestic partner, they may designate one person. An employee may change the designated person once per year within 10 days from when sick leave begins to accrue.
In Connecticut, employers who employ 50 or more people in any one quarter of the previous year must provide 1 hour of paid sick leave for every 40 hours worked by a service worker up to 40 hours per year. Part-time employees are covered by this law. The sick leave only accrues with actual hours worked (sick or other leave and vacation time are not included). Employees can carry over up to 40 unused accrued sick leave hours to the next year, but no employee can use more than 40 hours in any calendar year. Non-profit and certain other employers are except from this law. For a list of exempt employers and list of all individuals who are considered service workers go to the Connecticut Department of Labor.
Effective July 15, 2015, Massachusetts employers with more than 10 employees must provide 1 hour of guaranteed sick leave for every 30 hours worked, not to exceed 40 hours per year. Employees can use this time if they are ill, injured, or need to attend to a medical condition for themselves, a spouse, a child, or a parent. Employers with 10 or fewer employees are not required to provide paid sick leave, but they must provide unpaid sick leave under the same circumstances.
In Oregon, a state law mandating paid sick leave will go into effect on January 1, 2016. This new law will require most employers with 10 employees or more to provide employees with 1 hour of paid sick leave for every 30 hours worked up to 40 hours a year. It will also require employers with fewer than 10 employees to provide up to 40 hours a year of unpaid sick leave. Employees can use this time if they are ill, injured, or need to attend to a medical condition for themselves, or a family member (as defined by OFLA- the Oregon Family Leave Act); for any purposes allowed under OFLA; for any purpose under the Oregon domestic violence, harassment, sexual assault, or stalking law; or in the event of a public health emergency or event where the employer excludes the employee from the workplace for health reasons.
In Portland, an employer must provide full-time, part-time and temporary employees to accrue 1 hour of protected sick time for every 30 hours worked, not to exceed 40 hours per week. For employers with more than 5 employees, this sick time must be paid. For employers with 5 or fewer employees, the sick time must accrue but does not have to be paid. Sick time can be used to cover all or part of a shift. It can be used for to care for health issues of the employer or a family member or domestic and sexual violence issues for the employee or their family members.
District of Columbia
In. D.C., certain employees qualify for paid sick leave. To qualify, the employee must have worked for the employer for 1 year without a break in service, not including regular holiday, sick or personal leave granted by the employer, and has worked at least 1000 hours immediately preceding the requested sick leave. This law specifically excludes independent contractors, students, health care workers participating in a premium pay program, and wait staff and bartenders who work for a combination of wages and tips. Employers with 100 or more employees must provide eligible employees 1 hour of paid sick leave for every 37 hours worked, not to exceed 7 days per year. Employers with 25-99 employees must give employees 1 hour paid sick leave for every 43 hours worked, not to exceed 5 days a year. Employees with less than 25 employees must provide 1 hour of paid sick leave for every 87 hours worked, not to exceed 3 days per year. The sick leave can be used for physical or mental illness, injury or medical condition, or to obtain medical diagnosis or preventative care for the employee, their child, parent, spouse, domestic partner or other family member. This can also be used for services related to stalking, domestic violence or sexual abuse for any of those individuals. Under this law, a family member includes parents, parents-in-law, foster and grandchildren, children’s spouses, siblings, siblings’ spouses and any person who has shared a residence and committed relationship with the employee for the preceding 12 months or more.
On, February 3, 2016, the Vermont Senate passed a bill requiring most employers to provide paid sick leave to their employees. After consolidating this version of the bill with a similar version passed by the House, Vermont Governor Shumlin signed the legislation into law on March 9th, 2016, making Vermont the fifth state to implement a paid sick leave law. Employees (who work for employers who employ five or more people) will accrue one hour of paid time off for every 52 hours worked. Additionally, the bill provides a compliance grace period for new businesses. Employers may limit accrual of sick days, but must allow accrual up to at least three paid sick days per year in the first two years, and five paid sick days per year after that. In addition to a small business exception, the paid sick leave requirement will not apply to federal employees, employees under 18, temporary workers scheduled to work up to 20 weeks, and certain state, school, and healthcare employees. For a more detailed description of these exceptions see § 481(5) of the bill. The full text of the bill can be found at the Vermont legislature website.
New Jersey cities of Bloomfield, East Orange, Irvington, Montclair, Newark, Passaic, Patterson, and Trenton
All private sector workers employed in these cities are entitled to paid sick leave. Those employees who are covered by law will accrue paid sick leave at the rate of 1 hour per every 30 hours worked. Generally, employers with fewer than 10 employees may cap accrued sick leave at 24 hours per year, and employers with 10 or more employees may cap accrued sick leave at 40 hours per year. However, child care workers, home health care workers, and food service workers can only be capped at 40 hours per year regardless of their employer’s size. Covered employees may use their accrued leave for their own illness or condition, for a family member’s, or in the case of a public health emergency.
Jersey City, New Jersey
In Jersey City, private sector employees who work for employers with more than 10 employees earn 1 hour of paid sick leave for every 30 hours worked, not to exceed 40 hours per year. Employers with less than 10 employees are not required to provide paid sick leave, but must allow employees to earn 1 hour of unpaid sick leave for every 30 hours worked, not to exceed 40 hours a year. The right to sick leave is not affected by whether an employer works full or part-time. However, this law does not affect collective bargaining agreements.
In Seattle, all employers with more than 4 full-time equivalent employees must provide full-time, part-time, and temporary workers with paid sick leave. The paid sick leave can be used to deal with illness, injury or health condition of the employee, or a family member (including domestic partners), when their place of business has been closed for public health reasons or for reasons related to domestic or sexual violence or stalking. Employees with more than 4 but less than 50 employees must provide 1 hour paid sick leave for every 40 hours worked, not to exceed 40 hours per year. Up to 40 hours of paid sick leave can be carried over to the next calendar year. Employers with 50-249 employees must provide 1 hour paid sick leave for every 40 hours worked, not to exceed 56 hours per year. Up to 56 hours of paid sick leave can be carried over to the next calendar year. Employers with 250 or more employees must provide 1 hour paid sick leave for every 40 hours worked, not to exceed 72 hours per year. Up to 72 hours of paid sick leave can be carried over to the next calendar year.
Employees in Tacoma, Washington accrue paid sick leave at a rate of 1 hour per every 40 hours worked. Up to a total of 24 hours of paid sick leave may be accrued in a calendar year. The ordinance allows employees to carry over up to 24 hours of unused sick leave to the next calendar year, and may use a combined total of up to 40 hours in subsequent years. Employees can use paid sick leave to care for an illness (either the employee’s or a family member’s), when their place of employment has been closed by order of a public official or to care for a child whose school has been closed by order of a public official, to seek law enforcement or legal help for domestic violence or sexual assault (either for the employee or a family member), to seek safety from domestic violence, sexual assault or stalking, or for the bereavement of a family member.
New York, New York
Effective April 1, 2014, New York City employers with 5 or more employers must provide employees paid sick leave. New York City’s sick leave law was recently expanded to include siblings, grandchildren, grandparents, children and parents of the employee.
Montgomery County, Maryland
In Montgomery County, Maryland, employers will have to provide employees with paid sick and safe leave beginning October 1, 2016. Employees will accrue leave at the rate of one hour for every 30 hours worked, subject to caps. For employers with five or more employees may earn 56 hours per year of paid sick and safe leave, and may not use more than 80 hours of earned leave a year. For employers with fewer than five employees, employees may accrue up to 32 hours of paid leave and 24 hours of unpaid leave, and may not use more than 80 hours of earned leave a year. Sick and safe leave may be used by employees to treat their own, or a covered individual’s, physical or mental illness, injury, or condition; to obtain preventative medical care for themselves or a covered individual; in the case of a public health emergency that closest to the employer’s place of business or an employee’s child’s school or child care center; to Care for a covered individual when a healthcare provider has determined that the family member’s presence in the community would endanger the public; or in order to temporarily relocate the employee/covered individual or to obtain legal or medical services in cases of domestic violence, sexual assault or stalking.
Not to confuse you, but… Other Paid Leaves and States offering them:
Paid Family Leave: Only three states, California, New Jersey and Rhode Island, offer paid family and medical leave. All three states fund their programs through employee-paid payroll taxes and are administered through their respective disability programs. The state of Washington passed a paid family leave law in 2007, originally to take effect in October 2009, but the law was never implemented and subsequent legislation has indefinitely postponed its implementation.
Paid Sick Leave: Connecticut was the first state to require paid sick leave for private sector employers. The law applies to specified private sector employers with 50 or more employees and requires up to 40 hours of paid sick leave annually, on an accrual basis. California passed a paid sick leave law during the 2014 session and Massachusetts voters approved a sick leave law at the 2014 general election.
School/Parental Leave: A small number of states provide for a limited number of hours annually for parents to attend school-related events and activities for their children: California/40 hours, DC/24 hours, Illinois/8 hours, Louisiana/16 hours, Massachusetts/24 hours, Minnesota/16 hours, North Carolina/4 hours, Rhode Island/10 hours, Vermont/12 hours. Nevada makes it unlawful to terminate an employee for using leave to attend a child’s school-related activities.
State Family Medical Leave Laws
||Family Medical Leave Provisions
(unpaid unless noted)
To Care For:
|Private employers with 50 or more employees and all public sector employers.
|Up to 12 weeks of unpaid family leave plus 4 months of maternity disability may be combined for a total of 28 weeks per year.
|Child, spouse, parent, domestic partner, child of domestic partner, stepparent, grandparent, grandchild, sibling, or parent-in-law.
||Employees who have worked for an employer for at least 12 months, and who have 1250 hours of service during the 12 months prior to the leave.
||The California Paid Family Leave insurance program provides up to 6 weeks of paid leave to care for a seriously ill child, spouse, parent, or registered domestic partner, or to bond with a new child. The benefit amount is approximately 55% of an employee’s weekly wage, from a minimum of $50 to a maximum of $1067. The program is funded through employee-paid payroll taxes and is administered through the state’s disability program.
|Child, spouse, parent, or registered domestic partner.
||All employers with 75 or more employees, except private or parochial elementary or secondary schools. Employees who have 1000 hours service with an employer during the 12-month period before the leave.
||Up to 16 weeks in 2 years for the birth or adoption of a child, placement of child for foster care, to care for a family member with a serious medical condition, for the serious medical condition of the employee, or to serve as an organ or bone marrow donor.
||Child, spouse, parent, civil union partner, parent-in-law, or stepparent.
||Any public or private employer. Employees who have at least 1000 hours of service with an employer during the 12-month period prior to leave.
||Up to 16 weeks of family leave, plus 16 weeks of medical leave for employee’s own serious health condition during a 2 year period. Leave must be shared by family members working for the same employer.
|All relatives by blood, legal custody, or marriage, and anyone with whom an employee lives and has a committed relationship.
||Private employers with 100 or more employees. Excludes public employees. Employees who have worked for 6 consecutive months.
||Up to 4 weeks per year. Permits intermittent leave for birth, adoption placement, and to care for a family member with a serious health condition. Does not apply to employee’s own health condition or placement of a foster child. Does not require spouses to share leave.
|Child, spouse, parent, in-laws, grandparents, grandparents-in-law, stepparent, or reciprocal beneficiary.
||Private employers with 15 or more employees; all state employers, and local governments with 25 or more employees
||Up to 10 weeks in 2 years for the birth of a child or adoption of a child age 16 or younger. Includes leave to be an organ donor. Does not require spouses to share leave.
|Child, spouse, parent, sibling who lives with employee, civil union partner, child of civil union partner, or non-dependent adult child.
||Employers with 50 or more employees.
||Up to 24 hours per year leave to participate in children’s educational activities or accompany a child, spouse, or elderly relative to routine medical appointments, under the Small Necessities Leave Act.
||All employers with 21 or more employees. An employee who has worked for an employer for at least 12 consecutive months immediately preceding the request, and whose average number of hours per week equal one-half of a full-time equivalent position. All employers with at least 1 employee for school activities leave only.
|Up to 6 weeks for the birth or adoption of a child. Does not require spouses to share leave. Permits employees to use personal sick leave benefits to care for an ill or injured child on the same terms as for the employee’s own use. Up to 10 working days when a person’s parent, child, grandparents, siblings, or spouse who is a member of the United States armed forces, has been injured or killed while in active service. Up to 40 hours to undergo a medical procedure to donate bone marrow or to donate an organ or partial organ.
|Child, spouse, parent, grandparent, or sibling.
|All employers with 50 or more employees. Employees who have worked for an employer for 12 months and who have at least 1000 hours of service during those 12 months.
|Unpaid leave of up to 12 weeks in 24 months, not to exceed more than 6 weeks in 12 months, to care for a child anytime during the first year after that child’s birth or adoption, or to care for a seriously ill child, spouse, parent or domestic partner. Does not provide leave for the employee’s own serious health condition. Intermittent leave is limited to 42 days in 12 months. Does not require spouses to share leave.
||Child, spouse, parent, in-laws, or domestic partner.
|New Jersey (paid)
||Employees who have worked 20 calendar weeks or who have earned at least 1000 times the state minimum wage during the 52 weeks prior to leave.
||Paid leave provides up to ⅔ of wages up to $524/week for 6 weeks. Provides that any Paid Family Leave runs concurrently with FMLA or NJFLA and that other types of available leave must be used before taking paid family leave. Provides that leave may be paid, unpaid, or a combination of both.
||Child, parent, parent-in-law, grandparent, spouse, domestic partner
||All employers with 25 or more employees. Employees who have worked at least 25 hours per week in the past 180 days.
||Up to 12 weeks per year. An additional 12 weeks per year is available to care for the employee’s ill or injured child who does not have a serious health condition but who requires home care. Prohibits two family members working for the same employer from taking concurrent family leave except under certain conditions. Allows an employee to substitute any available paid vacation or sick leave. Allows leave to be used to deal with the death of a family member.
|Child, spouse, parent, grandparent, grandchild, or parent-in-law, or a person with whom the employee has or had an in loco parentis relationship.
|Private employers with 50 or more employees. All state government employers. Local governments with 30 or more employees. Full time employees who have been employed for 12 consecutive months and who work an average of 30 or more hours per week.
|Up to 13 weeks in 2 years for the birth or adoption of a child age 16 or younger, or to care for a parent, child, spouse or in-law with a serious medical condition.
|Child, spouse, parent, employee’s spouse’s parent.
|Rhode Island (paid)
||All private sector employers and public sector employers who opt into the program.
||The Rhode Island Temporary Caregiver Insurance Program provides 4 weeks of paid leave for the birth, adoption or fostering of a new child or to care for a family member with a serious health condition; and up to 30 weeks of paid leave for a worker’s own disability. The program is funded by employee payroll taxes and administered through the state’s temporary disability program. It provides a minimum benefit of $72 and maximum of $752 per week, based on earnings.
|Child, parent, parent-in-law, grandparent, spouse, domestic partner
||All employers with 10 or more employees for leaves associated with a new child or adoption. All employers with 15 or more employees for leaves related to a family member’s or employee’s own serious medical condition. Employees who have worked for an employer for one year for an average of 30 or more hours per week.
||Up to 12 weeks in 12 months for parental or family leave. Allows the employee to substitute available sick, vacation, or other paid leave, not to exceed 6 weeks. Does not require spouses to share leave. Provides an additional 24 hours in 12 months to attend to the routine or emergency medical needs of a child, spouse, parent, or parent-in-law or to participate in children’s educational activities. Limits this leave to no more than 4 hours in any 30-day period.
|Child, spouse, parent, parent-in-law.
||All employers. An employee who has been employed for at least 680 hours during his or her qualifying year.
|Washington Family Leave Act provides up to a total of twelve weeks of leave during any 12 month period for the birth of a child, the placement of a child for adoption or foster care, to care for a family member with a serious health condition, or because of a serious health condition that makes the employee unable to perform the functions of the job.
Washington Family Care Act allows workers with available paid sick leave or other paid time off to use that leave to care for a sick child with a routine illness; a spouse, registered domestic partner, parent, parent-in-law, or grandparent with a serious or emergency health condition; and an adult child with a disability.
Note: The Washington Family and Medical Leave Insurance Act, passed in 2007, and which established a paid family leave insurance program was never implemented and has been indefinitely postponed by subsequent legislation.
|Child, spouse, parent, parent-in-law, grandparent, or state registered domestic partner.
||Employers who employ at least 50 individuals on a permanent basis, including any state government entity. An employee who has been employed by the same employer for more than 52 consecutive weeks and who has at least 1,000 hours of service during that time.
||Up to 6 weeks of leave for the birth or adoption of a child; up to 2 weeks of leave care of a child, spouse, parent, domestic partner or parent of a domestic partner with a serious health condition; and up to 2 weeks of leave for the employee’s own serious health condition. Does not require spouses to share leave. Allows an employee to substitute employer-provided paid or unpaid leave for portions of family or medical leave.
||Child, spouse, parent, domestic partner, or parent of a domestic partner.
|School-Related Parental Leave
||School-Related Parental Leave
||Up to 40 hours per year, but no more than 8 hours per month, to participate in children’s educational activities.
||The Colorado Small Necessities Leave allows employees who are the parents or legal guardians of children in grades K-12 to take up to 6 hours of unpaid leave in any month, up to a total of 18 hours in any school year, to attend school-related activities or parent-teacher conferences.
||Up to 24 hours per year to participate in children’s educational activities.
||Up to 8 hours per school year, but no more than 4 hours on any day to attend a child’s school activities, and only when no other type of employee leave is available.
||Up to 16 hours per year at the employer’s discretion to participate in children’s educational activities. Allows an employee to use any types of accrued leave to participate in his or her children’s educational activities.
||Up to 24 hours per year leave to participate in children’s educational activities or accompany a child, spouse, or elderly relative to routine medical appointments, under the Small Necessities Leave Act.
||Up to 16 hours per year to participate in children’s educational activities.
||Makes it unlawful to terminate an employee for attending school conferences or for receiving notification of a child’s emergency at work.
||Up to 4 hours per year to participate in children’s educational activities.
||Up to 10 hours per year to participate in children’s educational activities.
||Provides an additional 24 hours in 12 months to attend to the routine or emergency medical needs of a child, spouse, parent, or parent-in-law or to participate in children’s educational activities. Limits this leave to no more than 4 hours in any 30-day period.
Sources: Westlaw 50-state statute searches, Westlaw 50-state surveys, StateNet bill tracking, state legislative websites. Compiled September 2008, updated September 2009, updated November 2011, updated December 2012, December 2013, December 2014.
A recurring Q & A:
I operate a business with close to 100 employees, and one of my long-term employees recently informed me that his mother passed away, and he would like to take a week off to travel to the East Coast to attend her funeral. To reduce stress at this difficult time, could I count this time off as protected leave under either or both the federal Family and Medical Leave Act and the California Family Rights Act?
Many employers wish to provide protected time off to employees for bereavement, but want to be sure if there are any leave laws that apply.
However, even assuming that the employee would meet the qualifications to be an eligible “employee” within the meaning of the Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA), his time off to attend the funeral of his mother would not be a qualifying reason under either the FMLA or CFRA.
This employee is asking for time off to attend a funeral, rather than to assist a family member who is currently suffering from a “serious health condition” as defined in the previous paragraph. In this case the employee’s reason for the absence would not qualify under either the FMLA or the CFRA.
An individual bereavement policy may or may be applicable in this situation. Many employers have a bereavement leave policy in their employee handbooks to protect this time off.
The information provided in this communication is for informational purposes only and not for the purpose of providing legal, accounting, or tax advice. The information and services UCM provides should not be deemed a substitute for the advice of any such professional. Such information is by nature subject to revision and may not be the most current information available.