Over the past few years, paid sick leave laws have been one of the biggest employment law trends among states and local jurisdictions. The proliferation of these laws can be especially challenging for employers that are subject to multiple laws with differing requirements. Here are answers to some common questions about paid sick leave laws.
Q: Where is paid sick leave required?
A: Currently, the following jurisdictions require (or will soon require) employers to provide paid sick leave to employees. Note that some of these laws permit small employers (as defined by each law) to provide unpaid sick leave:
States with Paid Sick Leave:
Cook County, Illinois
District of Columbia
Cities in New Jersey: Bloomfield, Elizabeth, East Orange, Irvington, Jersey City, Montclair, Morristown, Newark, New Brunswick, Passaic, Paterson, Plainfield, and Trenton
Cities in California: Berkeley, Emeryville, Oakland, San Francisco, Santa Monica, San Diego, Long Beach (hotels with 100 or more rooms), and Los Angeles
Cities in Washington: Seattle, Tacoma, and SeaTac (hospitality and transportation industries)
Cities in Minnesota: Minneapolis and St. Paul
Montgomery County, Maryland
New York City
Q: What types of absences are covered by paid sick leave laws?
A: It varies by jurisdiction, but these laws generally cover absences for the employee’s or a family member’s mental or physical illness, medical diagnosis, or preventative care. Many also cover absences related to seeking assistance following domestic violence, sexual assault, or stalking. Some cover other types of absences as well. Check your applicable law for details on what leave is covered and how “family member” is defined.
Q: How much leave must be provided?
A: The amount of leave employees are entitled to accrue and use differs among jurisdictions. Most laws use an accrual formula of one hour of sick leave for a certain number of hours worked, such as one hour for every 30 hours worked. Some allow employers to have caps on the number of hours an employee may accrue and/or use in a year.
Q: How much do I pay employees when they are out on sick leave?
A: These laws generally require employers to compensate sick leave at the employee’s normal rate of pay. Generally, there are specific rules for determining the employee’s “normal rate of pay” for the purposes of sick leave.
Q: What happens if employees don’t use all of their sick leave by the end of the year? Do I have to carryover the unused sick leave to the following year?
A: These laws generally entitle employees to carryover unused sick leave to the following year. However, many laws have a cap on the number of hours employees can carryover.
Note: In some (but not all) jurisdictions, employers can use the frontloading method instead of the accrual method for providing sick leave to employees. Under the frontloading method, employees receive all of the leave to which they are entitled at the beginning of each year. Some of these jurisdictions don’t require employers to carryover unused leave to the following year if they use the frontloading method. Check your sick leave laws for any rules on frontloading.
Q: My state requires me to provide paid sick leave to employees, but I already provide paid time off (PTO). Can I keep my current PTO policy or do I need a standalone paid sick leave policy?
A: Under many of the paid sick leave laws, if you have a PTO policy, you generally don’t have to provide additional paid sick days to employees if the policy:
Allows employees to use the same amount of leave for the same purposes and under the same conditions as required by the sick leave law; and
Satisfies the accrual, carryover, use and other requirements of the sick leave law.
A single PTO policy can be an attractive option for employers that are subject to multiple paid sick leave laws, as long as it meets or exceeds the requirements of the most generous paid sick leave law.
Q: Do I have to pay employees for unused sick leave when they leave my company?
A: Most sick leave laws don’t require that employers pay for accrued unused sick leave when an employee leaves the company. However, some states, such as California, require employers to pay out all unused PTO at the time of separation. If you bundle sick leave and PTO into one PTO/vacation policy, you could face additional payout costs.
Note: Some laws require employers to restore an employee’s leave balance if they return to the company within a certain period of time. For this reason, it’s important to maintain accurate records of sick leave balances (maintaining sick leave records may also be required by the law).
Q: What happens if both a state and local sick leave law apply to my employees?
A: You will have to coordinate compliance with both laws. Generally, where the laws conflict, the rule more generous to the employee applies. Review the differences of each law and provide your employees with the greatest protection called for in each provision of the law.
Q: Can I require employees to provide documentation that their absence was for a reason covered by the paid sick leave law?
A: Under many sick leave laws, employers can ask employees to provide reasonable documentation, but with some restrictions. For example, several prohibit employers from requesting documentation unless the employee has taken sick leave for more than three consecutive days. In the absence of a restriction, consider what, if any, documentation would be reasonable to require from employees, and make sure to apply your policy consistently. Also keep in mind that certain laws limit the type of medical information an employer can request, and any medical documentation, health information or victim status information received must be kept confidential and separate from the employee’s personnel file.
Q: Can I require employees to provide notice of their need to use sick leave?
A: Under many of these laws, employers may require employees to provide reasonable notice when the employee’s need for leave is foreseeable, but they may have different definitions of what is considered reasonable. If the need for leave is unforeseeable, employers may generally require employees provide notice as soon as practical or to follow the employer’s regular procedures for reporting other unscheduled absences (such as calling their supervisor before their shift starts). All notice requirements must comply with the applicable law and should be communicated to employees in a written policy.
Q: Are employees entitled to their job at the end of the leave?
A: These laws generally require employers to reinstate employees to the position they held before the start of the leave, or to a comparable/equivalent position (with equivalent seniority, benefits, pay, and terms and conditions of employment).
Q: My company is located in a state that doesn’t currently require paid sick leave, but I have employees who work in a state that does. Am I required to provide these employees with sick leave?
A: Coverage under many state and local paid sick leave laws is generally based on where the employee works. Therefore, these laws may apply to you if you have employees working in a covered jurisdiction, even if your business is located elsewhere. Check your applicable law to confirm which requirements apply to your business.
Sick leave laws address, among other things, employee eligibility, accrual of leave time, carryover, permitted reasons for taking leave, notice requirements, and anti-retaliation protections. Covered employers should review these rules carefully to make sure their sick leave programs comply.