The Path to Paid Sick-Leave Laws

The Healthy Families Act -- introduced in Congress every year since 2004 - is back on the table, with support for paid sick leave laws growing. The bill's passage, while uncertain in 2013, could eventually expand on FMLA in ways HR should make note of, experts say.

Tuesday, May 7, 2013
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The Healthy Families Act is back.

Actually, the bill -- which would oblige all private employers with 15 or more employees as well as public agencies to provide paid sick leave to employees -- never really went away.

Introduced in Congress every year since 2004, the bill was recently brought forward once again, this time by Rep. Rose DeLauro (D-Conn.) in the House, with Sen. Tom Harkin (D-Iowa) introducing the legislation in the Senate.

Experts are divided on whether the bill will make any progress in the near future, but 2013 does find support for paid sick leave laws gaining momentum. Cities such as San Francisco, Seattle and Washington, for example, have recently passed laws requiring employers to provide paid leave to their employees. In 2012, Connecticut became the first to pass such a law on the state level.

If the Healthy Families Act were to gain passage, HR's administration of the law would, in many ways, hew closely to that of the Family and Medical Leave Act. For example, employees would be allowed to use paid sick time for their own physical illness, injury or medical condition; to obtain a necessary professional medical diagnosis; and to care for a child, parent, spouse, domestic partner or other individual with whom the employee shares a relationship equivalent to that of a family

Similar to the FMLA, paid sick time under the HFA would be provided upon the employee's oral or written request, and an employee would be required to make reasonable efforts to schedule paid sick time without unduly disrupting the organization's operations.

There are, however, key provisions in the bill that would expand on or differ from FMLA requirements; provisions that HR should be mindful of as the push for paid sick leave laws picks up steam.

Most obviously, both offer job-protected leave, but FMLA leave is unpaid. Beyond that, the HFA would mandate that employees earn no less than one hour of paid sick time for every 30 hours worked, up to a maximum benefit of 56 hours per calendar year. The FMLA, on the other hand, provides up to 12 work weeks of unpaid leave in a 12-month period.

Under the HFA, employees would also be eligible for sick leave sooner; beginning to accrue sick leave entitlement from their first day of employment. (While employees wouldn't be able to start using the leave until they've worked 60 calendar days, employers could allow employees to borrow unearned paid sick time.) In addition, the HFA would mandate that -- if foreseeable -- employees request leave seven days in advance, compared to the 30 days required by the FMLA.

"It would not be surprising to see more movement in legislation like the HFA on a state and national level," says Fazila Issa, a Houston-based attorney with Reed Smith.

"Momentum," she says, "is growing."

Perhaps, but the path to paid sick leave doesn't figure to be a smooth one.

Mark Spring, a Sacramento, Calif.-based partner with Carothers DiSante & Freudenberger, doesn't see the Healthy Families Act making much progress in the near future, unless two significant factors change.

"I think two things would have to happen for such a bill to pass," he says. "No. 1, Democrats would have to gain a majority of the Congressional seats in both houses. Right now, Republicans hold over 30 more seats [in the House of Representatives] than Democrats do, so that's not likely to happen quickly."

The economic climate figures to play a role as well, says Spring.

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"The economy would have to improve materially," he says. "I believe there are certain Democrats who would be reluctant to support paid sick leave laws until the economy is on more stable footing. This is particularly true of the current Healthy Families Act, which applies to employers of 15 or more employees ... and would be seen by many - including Democrats - to have an adverse impact on smaller businesses."

"I don't see any movement on the legislation with this Congress," adds Ilyse Schuman, a Washington-based attorney with Littler Mendelson and co-chair of the firm's Workplace Policy Institute. "The same problems that befell previous attempts to move this bill still exist."

One of the key challenges the bill presents for employers and HR "is that employees may be covered under the HFA but not under the FMLA," says Issa.

For example, she says, the HFA provides for leave for specified activities related to domestic violence, sexual assault and stalking. The FMLA, however, "is silent on this, unless it would rise to the level of a serious health condition."

HR would also have to ensure employees are allowed to avail themselves of the benefit as well as minimize any attempts to abuse it, she continues, "particularly when, under the HFA, employees may take leave for up to three consecutive days without providing a medical certification."

Ultimately, forward progress figures to be slow for the Healthy Families Act, despite recent developments on the city and state levels. But HR should still be prepared when and if the law is implemented, says Issa.

"Employers will want to ensure they have robust processes in place to comply with the new Act as well as the myriad other laws that touch upon this issue," she says. "As is often the case, one of the most important things HR can do is to train managers on the requirements of the law and give them the right tools and resources to recognize and handle covered leave properly. Having clearly drafted, well-communicated policies is, of course, always key."

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