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National
The Families First Coronavirus Response Act (the Act or FFCRA) became law when President Donald Trump signed it on March 18, 2020, and it became effective on April 1, 2020. The Act builds on an $8.3 billion emergency COVID-19 spending package enacted into law on March 6, 2020, to address the immediate public health crisis of the COVID-19 pandemic. Broadly, these provisions include, but are not limited to, the following: emergency paid sick leave; emergency/expanded family and medical leave; unemployment benefits; and free coronavirus testing.
The Act modifies U.S. Department of Agriculture (USDA) food assistance and nutrition programs to allow certain waivers to requirements for school meal programs, suspend the work requirements for the Supplemental Nutrition Assistance Program (SNAP, formerly known as the food stamp program), and allow states to request waivers to provide certain emergency SNAP benefits. In addition, the Act requires the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard that requires certain employers to develop and implement a comprehensive infectious disease exposure control plan to protect healthcare workers.
The Act also includes provisions that establish a federal emergency paid leave benefits program to provide payments to employees taking unpaid leave due to the COVID-19 outbreak, expand unemployment benefits and provide grants to states for processing and paying claims, require employers to provide paid sick leave to employees, establish requirements for providing coronavirus diagnostic testing at no cost to consumers, treat personal respiratory protective devices as covered countermeasures that are eligible for certain liability protections, and temporarily increase the Medicaid federal medical assistance percentage (FMAP).
Sick leave. The Act requires employers with fewer than 500 employees to provide up to 80 hours of paid sick leave for local-/state-/federal-imposed quarantine or self-quarantine for COVID-19, for their own illness or a family member’s illness related to COVID-19, and for school/daycare closures related to COVID-19. Employees are not entitled to paid sick leave, however, if they are simply home because their workplace is closed. In these situations, employees may be eligible for unemployment compensation.
Paid leave required under the Act is separate and above any existing sick leave entitlements. Outside of those circumstances, an employee is subject to existing sick leave entitlements.
For absences related to the employee’s own exposure to the coronavirus, employers must pay 100 percent of the employee’s regular wages. Pay may be capped at $511 per day and $5,110 in the aggregate. For absences related to the employee’s family member or school and/or childcare closings, employers must pay the paid sick time at 2/3 the employee’s regular wages. Pay may be capped at $200 per day and $2,000 in the aggregate. Note that part-time employees are entitled to the number of paid sick time hours equal to the average number of hours they work over a 2-week period.
Emergency family and medical leave. The Act gives government employees and employees of companies with fewer than 500 employees the right to take up to 3 months of leave from their jobs if they have to care for a family member who is quarantined or for a child whose school has been closed.
Under the Emergency Family and Medical Leave Act (Expanded FMLA or EFMLA), for absences related to COVID-19, employees must only be employed for 30 consecutive days, and there are no hours-worked requirements.
Specifically, the EFMLA provisions temporarily expand the current FMLA to allow up to 12 weeks of job-protected leave for employees who are unable to work because they must care for a child whose school/daycare provider has closed due to a public health emergency declared as a result of COVID-19 by a federal, state, or local authority. Paid FMLA leave for this reason is required after the first 10 days (during which the paid sick leave may be used). Employees may choose to use previously available sick leave, vacation leave, or paid time off. Employers cannot require employees to utilize such leave, however. Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period). The Act also exempts certain healthcare providers from the expanded coverage. The right to EFMLA leave related to COVID-19 expires December 31, 2020.
Employers will receive tax credits for payments to employees under the FFCRA, and the Internal Revenue Service (IRS) recently issued guidance addressing how those credits would be provided, available online at https://www.irs.gov/newsroom/treasury-irs-and-labor-announce-plan-to-implement-coronavirus-related-paid-leave-for-workers-and-tax-credits-for-small-and-midsize-businesses-to-swiftly-recover-the-cost-of-providing-coronavirus. In short, the IRS is allowing employers to take immediate advantage of the paid leave credits by retaining and accessing funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS.
On March 24, 2020, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued additional guidance for employers and employees relating to the two paid leave provisions of the FFCRA: the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.
The provisions will become effective on April 1, 2020, and will apply to leave taken between April 1, 2020, and December 31, 2020. The DOL noted that leave taken and/or provided before April 1, 2020, will not count toward the FFCRA requirements.
UDPATE: As of April 8, 2020, the DOL has issued three separate FAQs to provide guidance concerning the FFCRA. On March 28, 2020, the DOL released its third batch of questions and answers (FAQs #38-59), which became effective April 1, 2020. According to the most up-to-date guidance, on April 1, the FFCRA will require private employers with 499 or fewer employees, and certain public employers, to provide covered employees with emergency paid sick leave (EPSL) and emergency unpaid and paid family leave (FMLA+). Additionally, the DOL also clarified some information it previously provided in other questions and answers (FAQs #1-37).
Additional information on the DOL’s guidance can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
A summary of the provisions of the Act may be found at https://www.congress.gov/bill/116th-congress/house-bill/6201/text.
There is no federal law requiring private employers to provide employees with paid sick leave—a short-term salary-continuation program for employees absent because of a non-job-related illness or injury—but most employers do provide it as an important employee benefit. Additionally, a growing number of states are considering and adopting state sick leave laws.
When adopting a sick leave policy, employers must be sure that it fully complies with federal or state family and medical leave laws, the Americans with Disabilities Act (ADA), and any other applicable laws.
There are many alternatives to standard sick leave policies, including flexible leave policies, leave donation programs, and paid-time-off banks.
Federal contractors are subject to differing requirements, including sick leave entitlements Specifically, pursuant to Executive Order (EO) 13706, employees performing work on covered federal contracts and subcontracts are entitled to at least 1 hour of paid sick leave for every 30 hours worked, up to a maximum accrual of 56 hours of earned paid sick leave per year.
For additional guidance on federal contractors and EO 13706, visit the Department of Labor’s resource guide for federal contractors.
Though sick leave is not required by federal law, administration of sick leave policies may be affected by the requirements of other established federal laws.
The federal Family and Medical Leave Act (FMLA), requires employers to provide up to 12 weeks of unpaid leave to eligible employees for a variety of reasons related to family and medical care.
Generally, leave taken under the federal FMLA is unpaid. However, employees may be eligible to receive money or pay while they are on FMLA leave by substituting paid vacation, sick, personal, or other paid leave time for unpaid FMLA leave time.
Concurrent use of sick leave during FMLA leave. The FMLA regulations require that if an employee chooses to substitute accrued paid leave for FMLA leave, he or she may do so. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave pursuant to the employer’s established policies for use of paid leave.
The employer may require that an employee comply with its established leave policies for use of paid leave, even if they are more (or less) stringent than the FMLA’s rules.
Under the FMLA regulations, the employer has the right to require, as a prerequisite to FMLA leave for a serious health condition, that the employee provide a medical certification to substantiate a serious health condition—even in cases where the employee is substituting paid leave for unpaid FMLA leave. The FMLA regulations do not permit employees to comply with a less stringent medical certification standard under the employer’s sick leave plan when the employee substitutes any form of paid leave for FMLA leave.
When an employee chooses, or an employer requires, substitution of accrued paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment. This notice is provided in the federal Form WH-381 (Eligibility and Notice of Rights and Responsibilities).
If an employee does not comply with the additional requirements in an employer’s paid leave policy, the employee is not entitled to substitute accrued paid leave, but the employee remains entitled to take unpaid FMLA leave.
Interaction with state laws. The FMLA does not supersede state laws, which may provide greater leave rights to employees.
Employers covered by both state sick leave laws and the FMLA should carefully review the various provisions of both laws to make sure that employees receive the more liberal leave benefits.
Additional information is available.
Please see the state Leaves of Absence section.
The Americans with Disabilities Act (ADA) states that allowing the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability.
An employer does not have to provide paid leave beyond what is provided to similarly situated employees. However, employers should allow an employee with a disability to exhaust accrued paid leave first, then the employer should consider unpaid leave as an accommodation.
No-fault attendance policies. No-fault attendance policies are those under which employees are automatically discharged after they have been on leave for a set period of time, regardless of the reason for the absence.
Although no-fault policies are not, by themselves, a violation of the ADA, an employer should be prepared to grant additional unpaid leave if an employee is covered by the ADA (i.e., a qualified individual with a disability) or the federal Family and Medical Leave Act (FMLA).
Additional information and discussion of leave as a potential reasonable accommodation is available.
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from discriminating against employees or applicants based on genetic information about employees, applicants, former employees, or their family members. GINA applies to all public employers, private employers with 15 or more employees, employment agencies, and labor organizations.
Under GINA, it is unlawful for an employer to request or require genetic information about employees, applicants, former employees, or their family members. Therefore, if an employer's sick leave policy allows supervisors to ask workers about the nature of the illness or injury before authorizing sick leave pay, or if a physician's statement is necessary for sick leave (i.e., after 2 or 3 days' absence), employers must consider GINA and the possibility that requiring such disclosure or certification may violate the law.
Employers with such sick leave policies are advised to include the GINA "safe harbor" statement in their policies and advise employees of the GINA provision.
GINA safe harbor exception. Employers do not violate GINA if their acquisition of genetic information is inadvertent. To be covered by this exception, employers requesting medical information from an individual or healthcare provider must direct the individual or provider not to provide genetic information.
The regulations issued by the Equal Employment Opportunity Commission (EEOC) provide the following model safe harbor language for employers to include with requests for medical information:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual, or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
The "watercooler" exception. Acquisition of genetic information is also considered inadvertent if a manager or supervisor learns genetic information about an employee by overhearing a conversation between the employee and others or by receiving it during casual conversation with the employee or others.
Note: The exception does not apply if an employer follows up with "probing" questions, such as whether other family members have the condition or whether the employee has been tested for the condition.
Confidentiality. No matter how an employer obtains genetic information, the information must be treated as a confidential medical record and kept separate from personnel files. Access to medical files should be strictly limited. Information may be kept in the same files that an employer uses for confidential medical information under the ADA as long as the ADA's confidentiality requirements are met.
The EEOC’s model employment law poster reflects GINA's requirements and is available at http://www.eeoc.gov.
Most employers use an accrual method of calculating sick time, in which employees earn a certain number of hours or days for each pay period worked, perhaps up to a fixed number of days annually.
Employers that offer paid sick leave also generally require that employees be employed for a certain minimum period, typically 3 to 6 months, before becoming eligible to accrue and/or take sick leave.
Reducing liability for accrued, but unused sick leave. If an employer offers sick leave—whether through a handbook, with an oral promise, or simply by day-to-day practice—some courts may consider the offer a promise or implied contract to which the employer is required to adhere, even when no law would otherwise require sick leave to be paid or provided.
In addition, many states’ laws consider certain types of paid leave to be the equivalent of wages, which must subsequently be paid out at termination. This interpretation is more prevalent when it comes to paid vacation time; however, employers should be aware of the potential requirement to pay out other forms of accrued leave, including sick leave, upon termination or discharge.
For this reason, some employers prefer to limit their liability for payout of accrued, but unused, leaves, including sick leave.
The simplest way to do so is simply by means of a written policy that places a limit on the total amount of paid sick leave that any employee may accrue. Once the limit has been reached, no additional sick time accrues until some of the employee's accumulated leave has been used. When the leave doesn’t accrue in the first place, no additional wage entitlement is created.
Another option is to “buy back” unused sick time at the end of a year, whether at full salary or a certain percentage of salary.
Some employers also allow employees to donate their unused sick leave to coworkers on extended medical leave.
Finally, some employers may opt to compensate unused sick leave regardless of the law’s requirements or under certain specified circumstances.
Avoid discrimination. Employers that offer sick leave, whether paid or unpaid, should ensure that their policies are applied fairly and consistently to all employees. When offering and administering sick leave, be particularly aware of discrimination traps in terms of sex, age, or disability.
Please see the state Discrimination section.
Rather than administer separate vacation and sick leave banks, many employers prefer a combined paid time off (PTO) approach.
PTO plans vary widely and tend to be personalized to the needs of the company. But, in general, a PTO plan will combine all of an employee's accrued paid time off into one bank that the employee can use for a variety of purposes.
For example, if an employer's original leave policies provided for 5 sick days, 5 personal days, and 10 vacation days per year, a PTO plan might offer a bank of 20 days that the employee could use entirely as sick time, entirely as vacation or personal time, or in any combination.
Employers like PTO banks because of their simplicity. Under a PTO program, employers concern themselves less with the reasons that an employee is taking time off, since there is no need to categorize the time. Note, however, that classifying medically related leave may still be necessary in order to count the time under the FMLA.
In addition, PTO programs may reduce unnecessary absences. For example, employees know that by using a sick day, they are reducing the amount of time available for vacation purposes. On the other hand, this same mentality can result in unwanted presenteeism, e.g., employees coming to work while sick and, possibly, contagious. Employers will need to rely on supervisors to help achieve balance in proper use of PTO.
Note that in some states PTO is regarded as deferred compensation, which must be paid to the employee as wages at termination of employment. This is worth considering in determining whether to have a PTO plan and how much year-to-year carryover of leave time to allow.
Employers must also ensure that the PTO program does not conflict with the requirements of the FMLA and any other applicable federal and state laws.
Some employers choose to create leave donation programs, also known as “leave banks,” within their organizations.
These programs allow employees to voluntarily donate portions of accrued leave to a “bank” to be used by eligible coworkers who have already exhausted their own paid leave for medical emergencies or catastrophic medical conditions.
Leave banks allow employees in dire medical situations to continue to take paid leave for what would otherwise be unpaid time, while also boosting morale by allowing employees to help one another.
It is a good idea to have employees complete a leave donation program form certifying that they are donating the leave voluntarily and that the leave will not be returned. Employers should also ensure their leave donation program complies with all applicable federal and state laws, including the Fair Labor Standards Act (FLSA).
Employers considering the adoption of a leave bank/donation program should first determine employee interest in such a program and then consider the following issues:
Confidentiality. Will the employer identify the individuals receiving and donating the leave?
Rules for eligibility. When can employees use the leave? For medical emergencies? Bereavement? For the employee's own illness, or to attend to an ill family member?
Method of donation. Can employees donate sick leave, vacation time, or both? Will there be a maximum limit on the amount of leave an employee may donate?
An organization's policy on sick leave should be in writing and thoroughly explained during onboarding, as well as in the employee handbook, policy manual, or individual employee contract.
When adopting a policy, employers must be sure that it fully complies with federal or state family/medical leave laws, the ADA, and any other applicable statutory mandate.
In drafting a new policy, employers should decide upon the following:
• How many days' paid sick leave will be given annually? How is the leave accrued, e.g., what is the proportion of sick time earned to the number of days worked? Do the number of days depend on the employee's length of service?
• Will supervisors ask workers about the nature of the illness or injury before authorizing sick-leave pay? Will a physician's statement be necessary, and if yes, after how many days of absence? If the nature of the illness or injury must be disclosed under the employer's policy, employers must advise employees or their physician that no genetic information should be disclosed.
• Can unused sick days be accumulated, and for how long? Will unused sick leave be compensated at the end of a year? What about when an employee leaves the job?
• Are part-time workers covered by the sick leave policy? Is there an hours-worked-per-week limit?
• Will sick pay be counted as “time worked” for overtime purposes?
• Will your policy address sick-day pay when sick days are taken before or after a holiday or a vacation?
Employers that want to change a sick leave policy must be sure the changes are communicated in writing, conspicuously, and clearly, so that all employees are informed.
It is also a good idea to have each employee who receives the new policy sign an acknowledgement stating that he or she has received, read, and understands the new policy.
Please see the state Employee Handbooks section.
In the absence of comprehensive federal paid sick leave requirements, a growing number of states and municipalities enacted their own paid sick leave laws applicable to employers that do business within state or municipal jurisdictions.
Details on these laws are available in the applicable state Sick Leave topical analysis discussions.
A concise, multistate comparison of state sick leave laws is also available in the State Law Chart Builder.
Discussion of other types of leave that may interact with sick leave, including family and parental leave, is also available.
Please see the state Leaves of Absence section.
Note: BLR® provides comprehensive employment law coverage at the federal and state levels. However, as noted, businesses may also be subject to additional requirements at the local (city, county, and municipal) level.
For select cities, BLR will provide a brief overview of these requirements.
If your locality is not listed or if you require further guidance on a law that is listed, we also recommend contacting the area Chamber of Commerce or the appropriate local enforcement, executive, or legislative body (e.g., city council, city labor board, or mayor's office) to confirm compliance with local laws.
Where a conflict exists between laws, employers should follow the law granting the most generous employee benefit.
Last Reviewed on April 29, 2020.
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National
The Families First Coronavirus Response Act (the Act or FFCRA) became law when President Donald Trump signed it on March 18, 2020, and it became effective on April 1, 2020. The Act builds on an $8.3 billion emergency COVID-19 spending package enacted into law on March 6, 2020, to address the immediate public health crisis of the COVID-19 pandemic. Broadly, these provisions include, but are not limited to, the following: emergency paid sick leave; emergency/expanded family and medical leave; unemployment benefits; and free coronavirus testing.
The Act modifies U.S. Department of Agriculture (USDA) food assistance and nutrition programs to allow certain waivers to requirements for school meal programs, suspend the work requirements for the Supplemental Nutrition Assistance Program (SNAP, formerly known as the food stamp program), and allow states to request waivers to provide certain emergency SNAP benefits. In addition, the Act requires the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard that requires certain employers to develop and implement a comprehensive infectious disease exposure control plan to protect healthcare workers.
The Act also includes provisions that establish a federal emergency paid leave benefits program to provide payments to employees taking unpaid leave due to the COVID-19 outbreak, expand unemployment benefits and provide grants to states for processing and paying claims, require employers to provide paid sick leave to employees, establish requirements for providing coronavirus diagnostic testing at no cost to consumers, treat personal respiratory protective devices as covered countermeasures that are eligible for certain liability protections, and temporarily increase the Medicaid federal medical assistance percentage (FMAP).
Sick leave. The Act requires employers with fewer than 500 employees to provide up to 80 hours of paid sick leave for local-/state-/federal-imposed quarantine or self-quarantine for COVID-19, for their own illness or a family member’s illness related to COVID-19, and for school/daycare closures related to COVID-19. Employees are not entitled to paid sick leave, however, if they are simply home because their workplace is closed. In these situations, employees may be eligible for unemployment compensation.
Paid leave required under the Act is separate and above any existing sick leave entitlements. Outside of those circumstances, an employee is subject to existing sick leave entitlements.
For absences related to the employee’s own exposure to the coronavirus, employers must pay 100 percent of the employee’s regular wages. Pay may be capped at $511 per day and $5,110 in the aggregate. For absences related to the employee’s family member or school and/or childcare closings, employers must pay the paid sick time at 2/3 the employee’s regular wages. Pay may be capped at $200 per day and $2,000 in the aggregate. Note that part-time employees are entitled to the number of paid sick time hours equal to the average number of hours they work over a 2-week period.
Emergency family and medical leave. The Act gives government employees and employees of companies with fewer than 500 employees the right to take up to 3 months of leave from their jobs if they have to care for a family member who is quarantined or for a child whose school has been closed.
Under the Emergency Family and Medical Leave Act (Expanded FMLA or EFMLA), for absences related to COVID-19, employees must only be employed for 30 consecutive days, and there are no hours-worked requirements.
Specifically, the EFMLA provisions temporarily expand the current FMLA to allow up to 12 weeks of job-protected leave for employees who are unable to work because they must care for a child whose school/daycare provider has closed due to a public health emergency declared as a result of COVID-19 by a federal, state, or local authority. Paid FMLA leave for this reason is required after the first 10 days (during which the paid sick leave may be used). Employees may choose to use previously available sick leave, vacation leave, or paid time off. Employers cannot require employees to utilize such leave, however. Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period). The Act also exempts certain healthcare providers from the expanded coverage. The right to EFMLA leave related to COVID-19 expires December 31, 2020.
Employers will receive tax credits for payments to employees under the FFCRA, and the Internal Revenue Service (IRS) recently issued guidance addressing how those credits would be provided, available online at https://www.irs.gov/newsroom/treasury-irs-and-labor-announce-plan-to-implement-coronavirus-related-paid-leave-for-workers-and-tax-credits-for-small-and-midsize-businesses-to-swiftly-recover-the-cost-of-providing-coronavirus. In short, the IRS is allowing employers to take immediate advantage of the paid leave credits by retaining and accessing funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS.
On March 24, 2020, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued additional guidance for employers and employees relating to the two paid leave provisions of the FFCRA: the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.
The provisions will become effective on April 1, 2020, and will apply to leave taken between April 1, 2020, and December 31, 2020. The DOL noted that leave taken and/or provided before April 1, 2020, will not count toward the FFCRA requirements.
UDPATE: As of April 8, 2020, the DOL has issued three separate FAQs to provide guidance concerning the FFCRA. On March 28, 2020, the DOL released its third batch of questions and answers (FAQs #38-59), which became effective April 1, 2020. According to the most up-to-date guidance, on April 1, the FFCRA will require private employers with 499 or fewer employees, and certain public employers, to provide covered employees with emergency paid sick leave (EPSL) and emergency unpaid and paid family leave (FMLA+). Additionally, the DOL also clarified some information it previously provided in other questions and answers (FAQs #1-37).
Additional information on the DOL’s guidance can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
A summary of the provisions of the Act may be found at https://www.congress.gov/bill/116th-congress/house-bill/6201/text.
There is no federal law requiring private employers to provide employees with paid sick leave—a short-term salary-continuation program for employees absent because of a non-job-related illness or injury—but most employers do provide it as an important employee benefit. Additionally, a growing number of states are considering and adopting state sick leave laws.
When adopting a sick leave policy, employers must be sure that it fully complies with federal or state family and medical leave laws, the Americans with Disabilities Act (ADA), and any other applicable laws.
There are many alternatives to standard sick leave policies, including flexible leave policies, leave donation programs, and paid-time-off banks.
Federal contractors are subject to differing requirements, including sick leave entitlements Specifically, pursuant to Executive Order (EO) 13706, employees performing work on covered federal contracts and subcontracts are entitled to at least 1 hour of paid sick leave for every 30 hours worked, up to a maximum accrual of 56 hours of earned paid sick leave per year.
For additional guidance on federal contractors and EO 13706, visit the Department of Labor’s resource guide for federal contractors.
Though sick leave is not required by federal law, administration of sick leave policies may be affected by the requirements of other established federal laws.
The federal Family and Medical Leave Act (FMLA), requires employers to provide up to 12 weeks of unpaid leave to eligible employees for a variety of reasons related to family and medical care.
Generally, leave taken under the federal FMLA is unpaid. However, employees may be eligible to receive money or pay while they are on FMLA leave by substituting paid vacation, sick, personal, or other paid leave time for unpaid FMLA leave time.
Concurrent use of sick leave during FMLA leave. The FMLA regulations require that if an employee chooses to substitute accrued paid leave for FMLA leave, he or she may do so. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave pursuant to the employer’s established policies for use of paid leave.
The employer may require that an employee comply with its established leave policies for use of paid leave, even if they are more (or less) stringent than the FMLA’s rules.
Under the FMLA regulations, the employer has the right to require, as a prerequisite to FMLA leave for a serious health condition, that the employee provide a medical certification to substantiate a serious health condition—even in cases where the employee is substituting paid leave for unpaid FMLA leave. The FMLA regulations do not permit employees to comply with a less stringent medical certification standard under the employer’s sick leave plan when the employee substitutes any form of paid leave for FMLA leave.
When an employee chooses, or an employer requires, substitution of accrued paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment. This notice is provided in the federal Form WH-381 (Eligibility and Notice of Rights and Responsibilities).
If an employee does not comply with the additional requirements in an employer’s paid leave policy, the employee is not entitled to substitute accrued paid leave, but the employee remains entitled to take unpaid FMLA leave.
Interaction with state laws. The FMLA does not supersede state laws, which may provide greater leave rights to employees.
Employers covered by both state sick leave laws and the FMLA should carefully review the various provisions of both laws to make sure that employees receive the more liberal leave benefits.
Additional information is available.
Please see the state Leaves of Absence section.
The Americans with Disabilities Act (ADA) states that allowing the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability.
An employer does not have to provide paid leave beyond what is provided to similarly situated employees. However, employers should allow an employee with a disability to exhaust accrued paid leave first, then the employer should consider unpaid leave as an accommodation.
No-fault attendance policies. No-fault attendance policies are those under which employees are automatically discharged after they have been on leave for a set period of time, regardless of the reason for the absence.
Although no-fault policies are not, by themselves, a violation of the ADA, an employer should be prepared to grant additional unpaid leave if an employee is covered by the ADA (i.e., a qualified individual with a disability) or the federal Family and Medical Leave Act (FMLA).
Additional information and discussion of leave as a potential reasonable accommodation is available.
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from discriminating against employees or applicants based on genetic information about employees, applicants, former employees, or their family members. GINA applies to all public employers, private employers with 15 or more employees, employment agencies, and labor organizations.
Under GINA, it is unlawful for an employer to request or require genetic information about employees, applicants, former employees, or their family members. Therefore, if an employer's sick leave policy allows supervisors to ask workers about the nature of the illness or injury before authorizing sick leave pay, or if a physician's statement is necessary for sick leave (i.e., after 2 or 3 days' absence), employers must consider GINA and the possibility that requiring such disclosure or certification may violate the law.
Employers with such sick leave policies are advised to include the GINA "safe harbor" statement in their policies and advise employees of the GINA provision.
GINA safe harbor exception. Employers do not violate GINA if their acquisition of genetic information is inadvertent. To be covered by this exception, employers requesting medical information from an individual or healthcare provider must direct the individual or provider not to provide genetic information.
The regulations issued by the Equal Employment Opportunity Commission (EEOC) provide the following model safe harbor language for employers to include with requests for medical information:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual, or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
The "watercooler" exception. Acquisition of genetic information is also considered inadvertent if a manager or supervisor learns genetic information about an employee by overhearing a conversation between the employee and others or by receiving it during casual conversation with the employee or others.
Note: The exception does not apply if an employer follows up with "probing" questions, such as whether other family members have the condition or whether the employee has been tested for the condition.
Confidentiality. No matter how an employer obtains genetic information, the information must be treated as a confidential medical record and kept separate from personnel files. Access to medical files should be strictly limited. Information may be kept in the same files that an employer uses for confidential medical information under the ADA as long as the ADA's confidentiality requirements are met.
The EEOC’s model employment law poster reflects GINA's requirements and is available at http://www.eeoc.gov.
Most employers use an accrual method of calculating sick time, in which employees earn a certain number of hours or days for each pay period worked, perhaps up to a fixed number of days annually.
Employers that offer paid sick leave also generally require that employees be employed for a certain minimum period, typically 3 to 6 months, before becoming eligible to accrue and/or take sick leave.
Reducing liability for accrued, but unused sick leave. If an employer offers sick leave—whether through a handbook, with an oral promise, or simply by day-to-day practice—some courts may consider the offer a promise or implied contract to which the employer is required to adhere, even when no law would otherwise require sick leave to be paid or provided.
In addition, many states’ laws consider certain types of paid leave to be the equivalent of wages, which must subsequently be paid out at termination. This interpretation is more prevalent when it comes to paid vacation time; however, employers should be aware of the potential requirement to pay out other forms of accrued leave, including sick leave, upon termination or discharge.
For this reason, some employers prefer to limit their liability for payout of accrued, but unused, leaves, including sick leave.
The simplest way to do so is simply by means of a written policy that places a limit on the total amount of paid sick leave that any employee may accrue. Once the limit has been reached, no additional sick time accrues until some of the employee's accumulated leave has been used. When the leave doesn’t accrue in the first place, no additional wage entitlement is created.
Another option is to “buy back” unused sick time at the end of a year, whether at full salary or a certain percentage of salary.
Some employers also allow employees to donate their unused sick leave to coworkers on extended medical leave.
Finally, some employers may opt to compensate unused sick leave regardless of the law’s requirements or under certain specified circumstances.
Avoid discrimination. Employers that offer sick leave, whether paid or unpaid, should ensure that their policies are applied fairly and consistently to all employees. When offering and administering sick leave, be particularly aware of discrimination traps in terms of sex, age, or disability.
Please see the state Discrimination section.
Rather than administer separate vacation and sick leave banks, many employers prefer a combined paid time off (PTO) approach.
PTO plans vary widely and tend to be personalized to the needs of the company. But, in general, a PTO plan will combine all of an employee's accrued paid time off into one bank that the employee can use for a variety of purposes.
For example, if an employer's original leave policies provided for 5 sick days, 5 personal days, and 10 vacation days per year, a PTO plan might offer a bank of 20 days that the employee could use entirely as sick time, entirely as vacation or personal time, or in any combination.
Employers like PTO banks because of their simplicity. Under a PTO program, employers concern themselves less with the reasons that an employee is taking time off, since there is no need to categorize the time. Note, however, that classifying medically related leave may still be necessary in order to count the time under the FMLA.
In addition, PTO programs may reduce unnecessary absences. For example, employees know that by using a sick day, they are reducing the amount of time available for vacation purposes. On the other hand, this same mentality can result in unwanted presenteeism, e.g., employees coming to work while sick and, possibly, contagious. Employers will need to rely on supervisors to help achieve balance in proper use of PTO.
Note that in some states PTO is regarded as deferred compensation, which must be paid to the employee as wages at termination of employment. This is worth considering in determining whether to have a PTO plan and how much year-to-year carryover of leave time to allow.
Employers must also ensure that the PTO program does not conflict with the requirements of the FMLA and any other applicable federal and state laws.
Some employers choose to create leave donation programs, also known as “leave banks,” within their organizations.
These programs allow employees to voluntarily donate portions of accrued leave to a “bank” to be used by eligible coworkers who have already exhausted their own paid leave for medical emergencies or catastrophic medical conditions.
Leave banks allow employees in dire medical situations to continue to take paid leave for what would otherwise be unpaid time, while also boosting morale by allowing employees to help one another.
It is a good idea to have employees complete a leave donation program form certifying that they are donating the leave voluntarily and that the leave will not be returned. Employers should also ensure their leave donation program complies with all applicable federal and state laws, including the Fair Labor Standards Act (FLSA).
Employers considering the adoption of a leave bank/donation program should first determine employee interest in such a program and then consider the following issues:
Confidentiality. Will the employer identify the individuals receiving and donating the leave?
Rules for eligibility. When can employees use the leave? For medical emergencies? Bereavement? For the employee's own illness, or to attend to an ill family member?
Method of donation. Can employees donate sick leave, vacation time, or both? Will there be a maximum limit on the amount of leave an employee may donate?
An organization's policy on sick leave should be in writing and thoroughly explained during onboarding, as well as in the employee handbook, policy manual, or individual employee contract.
When adopting a policy, employers must be sure that it fully complies with federal or state family/medical leave laws, the ADA, and any other applicable statutory mandate.
In drafting a new policy, employers should decide upon the following:
• How many days' paid sick leave will be given annually? How is the leave accrued, e.g., what is the proportion of sick time earned to the number of days worked? Do the number of days depend on the employee's length of service?
• Will supervisors ask workers about the nature of the illness or injury before authorizing sick-leave pay? Will a physician's statement be necessary, and if yes, after how many days of absence? If the nature of the illness or injury must be disclosed under the employer's policy, employers must advise employees or their physician that no genetic information should be disclosed.
• Can unused sick days be accumulated, and for how long? Will unused sick leave be compensated at the end of a year? What about when an employee leaves the job?
• Are part-time workers covered by the sick leave policy? Is there an hours-worked-per-week limit?
• Will sick pay be counted as “time worked” for overtime purposes?
• Will your policy address sick-day pay when sick days are taken before or after a holiday or a vacation?
Employers that want to change a sick leave policy must be sure the changes are communicated in writing, conspicuously, and clearly, so that all employees are informed.
It is also a good idea to have each employee who receives the new policy sign an acknowledgement stating that he or she has received, read, and understands the new policy.
Please see the state Employee Handbooks section.
In the absence of comprehensive federal paid sick leave requirements, a growing number of states and municipalities enacted their own paid sick leave laws applicable to employers that do business within state or municipal jurisdictions.
Details on these laws are available in the applicable state Sick Leave topical analysis discussions.
A concise, multistate comparison of state sick leave laws is also available in the State Law Chart Builder.
Discussion of other types of leave that may interact with sick leave, including family and parental leave, is also available.
Please see the state Leaves of Absence section.
Note: BLR® provides comprehensive employment law coverage at the federal and state levels. However, as noted, businesses may also be subject to additional requirements at the local (city, county, and municipal) level.
For select cities, BLR will provide a brief overview of these requirements.
If your locality is not listed or if you require further guidance on a law that is listed, we also recommend contacting the area Chamber of Commerce or the appropriate local enforcement, executive, or legislative body (e.g., city council, city labor board, or mayor's office) to confirm compliance with local laws.
Where a conflict exists between laws, employers should follow the law granting the most generous employee benefit.
Last Reviewed on April 29, 2020.
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