Congress Considers Bill Mandating Paid Sick Days

On May 18, 2009, Rep. Rosa DeLauro (D. Conn.) introduced a bill that would mandate paid sick days for most U.S. employees. Senator Edward Kennedy is scheduled to introduce similar legislation in the Senate later this week.

The bill, dubbed the "Healthy Families Act," would apply to private employers with 15 or more workers as well as and public agencies. Key provisions of the proposed law include:

• Covered employers would be required to provide employees at least one hour of paid sick leave for every 30 hours worked, and to accrue up to a total of 56 hours of paid sick time per calendar year.
• Employers with existing sick leave policies that already provide at least the required amount of leave for the same purposes would not be required to provide additional leave under the new law.
• An employee who is exempt from the overtime requirements of the Fair Labor Standards Act would be presumed to work 40 hours per week for purposes of the sick leave law, unless the employee normally works fewer than 40 hours per week.
• Sick leave would begin to accrue on the first day of employment, and employees would be eligible to use sick leave after 60 days of employment.
• Earned sick leave would carry over from year to year, but employees would not be entitled to accrue more than 56 hours at a time.
• If an employee is separated and re-hired within 12 months, the employer would be required to reinstate the employee’s previously-earned paid sick time.
• Employees would be allowed to use accrued sick time for their own illness, to care for parents or children, or to visit a healthcare provider for treatment or preventive care. The leave could also be used for absences resulting from domestic violence, sexual assault, or stalking.
• Employees must provide at least oral notice 7 days in advance of foreseeable leave, and notice "as soon as practicable" of unforeseen leave.
• Employers may require medical certification if an employee seeks leave lasting longer than 3 consecutive workdays. If requested, certification must be provided within 30 days of the first day of the leave.

Although similar legislation was proposed during the Bush Administration, it gained little traction. However, the recent Democratic sweep in Congress and the White House dramatically increases the bill’s prospects. President Obama backed the measure both as a Senator and during his presidential campaign, and Mrs. Obama embraced the idea last week in a speech to business leaders. Business groups will likely mount strong opposition to the bill, particularly in light of the still-struggling economy.

This bill joins several other pending bills relating to mandatory leave time under the Family and Medical Leave Act:

• H.R. 626 would provide that 4 of the 12 weeks of parental leave available to federal employees under the FMLA would be paid leave.
• H.R. 1723 would create an insurance program, funded through employer and employee payroll tax contributions, to provide up to 12 weeks of paid FMLA leave benefits.
• H.R. 2132 would amend the FMLA to allow leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, or grandparent with a serious health condition.
• H.R. 2161 would repeal most of the employer-friendly provisions of the recent FMLA amendments, while leaving in place the new and more onerous requirements on employers.

For updates on bills and other changes to the FMLA and employee leave rights under federal law, visit the FMLA section of our Web site at www.FMLAregs.com.

For questions about the FMLA, please contact your preferred Franczek Radelet attorney, or Jeff Nowak or Bill Pokorny.