Sick Leave: What Employers Need to Know
While no federal law requires employers to offer paid or unpaid sick leave to employees, some states and local jurisdictions do. Outside of these jurisdictions, it is up to the employer to decide whether to offer sick leave and how to administer it. The following are factors to consider when designing and implementing a sick leave program.
Paid sick leave laws. These laws address, among other things, employee eligibility, accrual of leave time, permitted reasons for taking leave, and notice requirements. Covered employers should review these laws carefully to make sure their sick leave programs are compliant. Also note that these laws may apply to you if you have employees working in these jurisdictions—even if your business is located elsewhere. The following states and local jurisdictions require employers to provide paid sick leave to employees:
- Emeryville, CA
- Oakland, CA
- San Francisco, CA
- Santa Monica, CA
- District of Columbia
- Montgomery County, MD (eff. 10/1/16)
- Bloomfield, NJ
- East Orange, NJ
- Elizabeth, NJ
- Irvington, NJ
- Jersey City, NJ
- Montclair, NJ
- Newark, NJ
- New Brunswick, NJ
- Passaic, NJ
- Paterson, NJ
- Trenton, NJ
- New York City, NY
- Philadelphia, PA
- Seattle, WA
- Spokane, WA (eff. 1/1/17)
- Tacoma, WA
Weighing the pros and cons. Absent a requirement to provide sick leave, employers should determine whether it makes business sense to provide such leave voluntarily. While there are costs associated with providing paid sick leave, the cost of having sick employees working to avoid losing pay can be even greater. These employees are likely to be unproductive and may spread illness throughout the workplace.
Call-in procedures. Establish clearly defined call-in procedures for employees who are unexpectedly absent due to illness. The procedures should address who the employee should contact (e.g. the employee’s supervisor), when the employee should contact that individual (e.g. at least one hour before the start of the shift), how the employee is to notify the individual (e.g. by phone), and that disciplinary action may be taken against employees who fail to follow call-in procedures.
Handling no-calls/no-shows. A no-call/no-show policy should make it clear that failure to report to work after a certain number of consecutive shifts, and a failure to call in, may be deemed a voluntary termination. Keep in mind that extenuating circumstances, such as a serious accident or emergency, may prevent an employee from notifying the company of his or her absence. For these reasons, consider having procedures in place to verify the absence isn’t protected under federal, state, or local law before applying such a policy.
Notice. Employers may require employees to provide reasonable notice when the employee’s need for leave is expected (e.g. the employee has scheduled a medical procedure in advance). Employers should communicate all notice requirements to employees in a written policy.
Documentation. If an absence lasts longer than a certain period of time (e.g. three consecutive days), consider asking employees to provide documentation regarding the reason for an absence, such as a doctor’s note. Note: The Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and many state laws give employees certain privacy rights and may limit the information an employer can request from an employee. Make sure that any documentation requirement complies with these, and all applicable laws.
Carryover. Jurisdictions that require paid sick leave also typically mandate that employers allow employees to carry over a certain amount of unused sick time from year to year. Absent such a requirement, employers generally may enforce the forfeiture of unused sick leave at the end of the year. However, several states prohibit employers from applying use-it-or-lose it policies to vacation and paid time off policies. Employers in these states need to determine whether these prohibitions apply to their policy, especially employers that choose to amend their paid time off policies to address sick leave.
Exempt employees. Exempt employees must receive their full salary in any workweek in which they perform work, regardless of the number of hours worked. Deductions for absences related to sickness are generally not permitted, unless the employee is absent for a full workweek, or the employee qualifies for one of the few exceptions under the law.
Other leave laws. Even if your jurisdiction doesn’t require paid sick leave, employees may be entitled to unpaid leave under other laws. Understand your obligations at the state, federal and local level and how these obligations interact with any paid sick leave laws. For example, the federal Family and Medical Leave Act requires employers with 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave to employees who have, among other reasons, a “serious health condition.” Several states have enacted similar laws, some of which may cover smaller employers. Some states have laws that entitle employees to unpaid leave if they donate an organ or are victims of certain crimes and need medical (or other) services.
If applicable, ensure that your paid sick leave policy and procedures comply with federal, state and local laws. Consider consulting legal counsel for guidance.
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