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The Healthy Families Act - Mandated Paid Sick Leave

June 15, 2009

On May 18, 2009, Congresswoman Rosa DeLauro (D-CT) reintroduced the Healthy Families Act, H.R. 2460. The companion bill in the Senate was introduced a few days later on May 21, 2009 by Senator Ted Kennedy (D-MA) as S. 1152. With this reintroduction, the Healthy Families Act (HFA) will likely receive serious consideration. If passed, President Obama will likely sign the legislation, which will create mandated paid leave on a federal level.

This Client Alert reviews the HFA and the potential changes it would bring. While the anticipated pace of the legislation in Congress was anticipated to be slow due to its focus on the current economic situation, a hearing in front of the Subcommittee on Workforce Protection to the House of Representatives Committee on Education and Labor was already held on June 10, 2009.

The Healthy Families Act
Companies with employees in the City of Milwaukee know the topic of paid sick leave well, due to the City of Milwaukee Paid Sick Leave Ordinance, MCO Chapter 112 ("Ordinance"). Despite the June 12, 2009 Decision by Judge Cooper invalidating the Ordinance, legislation introduced on the federal level signals that the issue of mandated paid leave is far from over and may extend to businesses across the country.

There are three notable changes in the latest versions of the HFA, which are very similar to key provisions of the Ordinance. First, the HFA requires employers with 15 or more employees in 20 or more calendar weeks to accrue one (1) hour of paid sick leave earned per thirty (30) hours worked by an employee, a concept that appears in the Ordinance. Second, not only does the HFA allow leave for an employee's own health condition and to seek preventative care as well as leave for the health of or to seek preventative care for a family member, the HFA also requires employers to provide leave for employees to deal with domestic violence, as does the Ordinance. Finally, "family member" is defined to include a broad group of persons including anyone "related by blood or affinity whose close association is the equivalent to a family relationship." These three provisions were not contained in the Healthy Families Act in the 110th Congress. As noted, the HFA's similarities to the Ordinance in the 111th Congress are somewhat striking.

Businesses with employees in the City of Milwaukee should note that, if the Ordinance survives the legal challenge and the HFA passes, employers with 10 or more employees would be required to comply with the Ordinance by providing up to 72 hours of paid sick time, instead of the lesser 56 hours mandated by the HFA. The HFA does not supersede or preempt any provision of state or local law that provides greater paid sick time, greater leave rights or greater coverage than those established under the HFA.

In the case of collective bargaining obligations, the HFA would not affect such contracts until either the date of termination of the contract or the date that occurs 18 months after the date the Secretary of Labor issues HFA regulations, whichever is earlier.

Some other highlights of the HFA include the following:

  • Employees may not use the paid leave until the 60th calendar day of employment, and, thereafter, as the paid leave is earned.
  • Paid leave earned and not used by an employee must be carried over from one calendar year to the next.
  • The HFA does not require an employer to pay out the leave at issue upon separation of employment.
  • An employee rehired by the same employer within 12 months of separation is entitled to reinstatement of previously earned paid sick leave, in addition to the right to accrue additional time upon the commencement of the rehire.
  • Upon an oral or written request of the employee, the employee shall make a "reasonable effort" to schedule a period of paid leave in a manner that does not unduly disrupt the operations of the employer.
  • The employee shall provide at least seven days' notice to the employer in advance where the need for leave is foreseeable; however, advance notice need only be provided "as soon as practicable after the employee is aware of the need" for leave that is not foreseeable.
  • Certification may be required by a health care provider "if the period of [leave] covers more than three consecutive workdays." The employee shall return the certification in a timely manner, not later than 30 days after the first day of leave.
  • The employer cannot delay the commencement of leave on the basis that the employee has not provided the certification.
  • An employer may not interfere with, restrain, or deny the exercise of, or attempt to exercise any right provided under the HFA by discharging, discriminating or retaliating against any individual, including an applicant, for exercising, or attempting to exercise, any right provided under the HFA, using the taking of HFA-protected paid sick time as a negative factor in an employment action, such as hiring, promotion, or disciplinary action, or counting the HFA-protected paid sick time under a no-fault attendance policy or any other absence control policy, among other things.
  • An employee may file a complaint with the Department of Labor or a civil action to recover damages or equitable relief against an employer in federal or state court on behalf of himself or herself, as well as "others similarly situated," seeking wages, salary, employment benefits or other compensation denied or lost by reason of the violation, interest on the above amount calculated at the prevailing rate, liquidated damages, equitable relief as may be appropriate, including employment, reinstatement, and promotion, and reasonable attorney's fees, reasonable expert witness fees and other costs of the action to be paid by the defendant.
  • In a case where there is no wage loss, the employee is authorized to seek "any actual monetary losses sustained as a result of the violation up to a sum equal to 56 hours of wages or salary."
  • Under the HFA, the Secretary of Labor not only has the authority to investigate and attempt to resolve complaints as under the Fair Labor Standards Act but also has the authority to bring an action in court to recover the above damages to recover damages for affected employees and seeking injunctions to restrain violations of the HFA.

Conclusion
Employers should begin reviewing the requirements of the HFA and stay tuned as the bill progresses through Congress.

One initial consideration for employers is whether to adopt a Paid Time Off (PTO) policy which combines all existing leave programs into a PTO program and allows employees to use the time as they see fit. Any PTO policy should expressly encourage employees to properly and responsibly manage their use of leave as the year progresses. By definition, it is not an employer's responsibility to manage the manner in which an employee chooses to make use of his or her PTO leave. Rather, a PTO policy should place the responsibility to manage the use of PTO time squarely upon the employee.

While it is impossible to predict what the final version of the HFA will look like, PTO policies can be drafted to ensure that the leave provided is equal to or more generous than that which may be required by the HFA and allowed for the same purposes as required by the HFA. In all likelihood, PTO policies that meet this standard will be exempt from substantive changes, but will still have to comply with the procedural mandates of the HFA outlined above.

To view the text or status of H.R. 2460 and S. 1152, visit the Library of Congress's website at http://thomas.loc.gov and enter "Healthy Families Act" under the "Search Bill Summary & Status" heading. For information regarding the July 11, 2009 hearing in front of the Subcommittee on Workforce Protection of the House Committee on Education and Labor, visit the Subcommittee's website: http://edlabor.house.gov/hearings/workforce-protections/

Should you have any questions regarding Mandated Paid Leave programs, please contact Daniel J. Finerty (dfinerty@gklaw.com) at (414) 287-9262 or any member of the Godfrey & Kahn, S.C. Labor and Employment Law Team.

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If you have a media request or need an attorney with particular knowledge for comment, please contact Susan Steberl, Director of Marketing, at 414.287.9556 or ssteberl@gklaw.com.

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