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Monthly Archives: June 2013

New York City is the Latest to Offer Paid Sick Leave

By Marti Cardi, Chief Compliance Officer, and Megan Holstein, Senior Counsel, Compliance and Employment Law

Yesterday, June 27th, the New York City Council overrode Mayor Michael Bloomberg’s veto to pass the Earned Sick Time Act.  The law will require New York City businesses to offer employees paid sick leave.  The benefit requires businesses to offer 5 paid sick days a year and is effective April 2014 for businesses with 20 or more workers and October 2015 for businesses with 15-19 workers.  Smaller businesses must offer 5 unpaid sick days per year, making it illegal to fire a worker who misses work due to illness.  The paid sick leave benefit could be postponed if the city’s economy takes a turn for the worst.  A few struggling businesses are exempt from the ordinance and the Act has special rules for domestic workers.

Below is a summary of New York’s Earned Sick Time Act:

Covered Employers:

All employers with employees located in New York City must comply with Earned Sick Time Act.

Eligible employees:

An employee is eligible if the employee works more than 80 hours per year within New York City.

Amount of sick time:

Employers must provide 1 hour of paid sick time for every 30 hours of work. If the employer has 14 or fewer employees then the sick time can be unpaid.

An employee begins accruing sick time at the commencement of employment or the effective date of the Act, whichever is later.  Employees can begin using sick time on the 120th calendar day following the commencement of employment or the effective date of the Act, whichever is later. An employer can set a minimum increment for the use of sick time, not to exceed 4 hours per day.

Employees can carry over sick time from year to year, but employers can cap sick time accrual at 40 hours per year.

Reasons for Sick Time

Employees can use sick time for any of the following reasons:

  • Treatment of an employee’s or a family member’s mental or physical illnesses, injuries, health conditions, or preventative care; or
  • Because the employer’s business or the employee’s child’s school or childcare facility closes for a public health emergency.

Interaction with Employer Policy

If an employer policy or collective bargaining agreement already provides time off such as paid sick time that is equivalent to the sick time required under the Earned Sick Time Act, then the employer does not need to provide additional sick time.

Notice and Verifying the Need for Sick Time

An employer can require the employee to provide notice for the use of sick time: up to 7 days’ notice for a foreseeable need and as soon as practicable for unforeseeable time off.

If the employee’s absence is more than 3 consecutive work days, the employer can require reasonable documentation the use of sick time was for an authorized purpose.  An employer can also require an employee to provide written confirmation that the employee used sick time for an authorized purpose.

Don’t ignore the trend!

New York joins Portland, San Francisco, Seattle, Washington D.C., and the state of Connecticut as governments that require its employers to offer paid sick leave for most of the employees in that state or city.  Other municipalities such as Denver, Milwaukee, and Philadelphia have tried to offer similar benefits, but have failed.  Reed Group has previously written on this trend of paid sick leave.  To summarize our previous postings, employers should stay alert in the places they do business and be prepared to offer paid sick leave to their workforce.  Most paid sick leave laws offer a safe harbor exception to employers who already offer paid sick time to employees that cover absences for the same reasons and in at least the same amount as the law or ordinance.  In addition, paid sick leave will overlap with other state and federal-mandated unpaid leave of absence laws, such as the federal FMLA.

Supreme Court speaks to same-sex marriages – what does this mean to leave administration?

By Megan G. Holstein, Senior Counsel, Compliance and Employment Law, and Martha J. Cardi, Chief Compliance Officer

The United States Supreme Court issued 2 key decisions this morning concerning same-sex marriages: United States v. Windsor, concerning the Defense of Marriage Act (DOMA) and Hollingsworth v. Perry, concerning California’s Proposition 8 (ban on same-sex marriage).  These decisions impact leave of absence administration as it relates to covered relationships under the Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) and are effective immediately.

United States v. Windsor, the DOMA case: DOMA defines “marriage,” for purposes of federal laws and programs including the FMLA, as a union between a man and a woman only. Today the Court ruled that DOMA is unconstitutional because it denies equal protection to same-sex married couples. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples.

The effect of the Supreme Court’s decision on leave administration: Under the FMLA, a spouse is defined as a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides (not where the employee works). 29 U.S.C. § 2611(13); 29 C.F.R. § 825.102; 29 C.F.R. § 825.122(b).  As a result of the DOMA ruling, effective immediately, an employee can now take FMLA leave to care for a same-sex or opposite sex spouse with a serious health condition, for military caregiver leave, or take qualifying exigency leave for a military spouse.

The following states (and D.C.)  currently recognize same-sex marriages:

  • California
  • Connecticut
  • Delaware
  • District of Columbia
  • Iowa
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota (effective August 1, 2013)
  • New Hampshire
  • New York
  • Rhode Island
  • Vermont
  • Washington

The Supreme Court’s ruling does not have any impact on couples in a recognized domestic partnership or civil union, leaving many same-sex couples still without FMLA leave rights for a partner.

Hollingsworth v. Perry, the California Proposition 8 case:  Previously, same-sex marriages were permitted in California until the voters passed Proposition 8, a California constitutional amendment that, like DOMA, limited marriages to those between one man and one woman.  Prop 8 was declared unconstitutional by a California federal court in a lawsuit filed by two same-sex couples. The California government officials who would normally have defended the law in court declined to do so. Today the Supreme Court held that the proponents of Proposition 8 do not have the legal right (“standing”) to defend the law in court and sent the case back to the lower court with instructions for it to dismiss the appeal.

The effect of the Supreme Court’s decision on leave administration: As a result of the Supreme Court’s ruling, Proposition 8 remains stricken by the lower court’s decision and California will likely resume issuing marriage licenses to same-sex couples. If an employee has a valid marriage license to his or her same-sex spouse, then CFRA will cover that employee’s relationship.

Reed Group is Ready!

Reed Group is communicating these Court decisions to its staff so that we can immediately handle employees’ leave requests for their same-sex spouses.  We have begun training so that Reed Group employees are aware of what states recognize same-sex marriages. We are reviewing our signature LeavePro™ leave management software to determine if any updates are necessary. Reed Group will also update its FMLA chapter in the Leave Advisor™ to indicate that same-sex marriages should be recognized under the FMLA.