Client Briefing from the Employment and Labor Group - July 2008
SEVEN SICK DAYS ARE COMING - OHIO'S HEALTHY FAMILIES ACT
The Ohio Health Families Act ("OHFA") likely will be on the statewide ballot in November 2008 and, if passed by voters, will require employers with twenty-five or more employees to provide seven paid sick days per year for full-time employees and a prorated number of days for part-time workers.
What Can And Should Employers Do Now? Employers should review their current paid time off and other leave policies such as attendance, sick leave, PTO (paid time off) now with the expectation that the Act likely will be enacted in some format. Some employers may want to revise their policies before OHFA is passed, while others may opt to revise or draft policies once it is clear what will be required. For specific advice on making that decision, employers should consult employment law counsel.
How Much Paid Leave Will Employees Get? Employees who work 30 or more hours per week will be entitled to seven paid sick days a year, while employees working less than 30 hours a week will be entitled to a prorated number of days. If an employee's schedule varies, the weekly average must be calculated for the 12-week period immediately preceding the leave. This calculation will be used to determine the accrual rate.
How Can Employees Use the Paid Leave? Paid sick leave can be used to cover the employee, the employee's child, parent (including in-laws), or spouse for:
- a physical illness;
- a mental illness;
- injury;
- medical condition;
- medical diagnosis;
- treatment;
- preventative care.
How Will Leave Be Calculated? Sick leave will accumulate immediately upon an employee's hire and it must accrue at least monthly. Employers must allow new employees to use paid sick leave after they have worked 90 days.
Employees will be able to carry over sick leave from year to year but the number of days an employee may carry over is unclear. Moreover, while the Act expressly states that employers do not have to permit an employee to accumulate more than 7 days of paid sick leave each year, it remains unclear as to how many sick days an employee may keep in the "bank."
How Will Employees Give Notice of Leave? Employees may request paid sick leave verbally or in writing. They only have to state the reason for the leave and how long they expect it to last. If the leave is foreseeable, the employee must give at least seven days' notice. If the leave is not foreseeable, notice only needs to be given as soon as possible once the employee becomes aware of the need for leave. Employees will, therefore, be able to call at the last minute under many circumstances.
How Should Employers Track Leave? Employees may take leave in increments of less than a full day. If the leave taken is less than a regular work day, the employer must track the leave in hourly increments. If an employee requests a leave of less than an hour, the employer must track it in the smallest increment that the employer's payroll system uses to account for absences or use of other leave.
How Will Employers Know the Leave Is for a Valid Reason? Employers may require a medical certification for sick leave only if the leave is more than three consecutive work days. In such a case, the employee will have 30 days after the first day of leave to provide medical certification. If the paid sick leave is for three or fewer consecutive work days, the employer may not ask for medical certification.
Medical certification may be issued by any "health care professional," which is specifically defined as "any person licensed under federal or state law to provide health care services including, but not limited to, nurses, doctors, and emergency room personnel."
May Employers Revise Existing Policies To Offset Having to Provide for the Paid Sick Leave? Yes and No. Yes, if revisions are made before OHFA is enacted. No, if revisions are made after the OHFA is enacted. Once the OHFA is enacted, employers will not be able to reduce or eliminate any type of leave that is currently available to employees in order to comply with the Act. For example, if an existing policy provides for 10 vacation days and five sick days, an employer may not revise the policy so that the number of vacation days are reduced to compensate for the increase in sick days required by the Act.
What are the Posting and Record-Keeping Requirements? Employers will have to post a summary of the OHFA in a conspicuous and accessible place. Employers also must maintain records documenting for a three-year period the number of hours their employees have worked and how much paid sick leave has been taken. Health information regarding any leave must be treated as a confidential medical record and maintained in a confidential file separate from the employees' personnel files.
Does the OHFA Include an Anti-Retaliation Provision? Yes. Employers are not allowed to retaliate against an employee or negatively evaluate an employee's performance because of an employee's use of paid sick leave. Employers are also not allowed to use the employee's use of paid sick leave to negatively impact other terms and conditions of the employee's employment.
Who Will Enforce the OHFA and What Are the Consequences for a Violation? An employee, or the Ohio Attorney General, will be able to bring a civil action to enforce the Act. Employers will be liable to affected employees for any denied or lost wages, salary, employment benefits or other compensation, plus interest multiplied by three. Also, an employee who has not lost or been denied any wages, salary, employment benefits or other compensation, still will be able to recover up to ten days of wages or salary, plus interest multiplied by three for any other "actual monetary losses" that directly resulted from the violation. Employees who win a lawsuit also may be awarded attorney's fees.
Employers who violate the posting requirement will be subject to a civil fine of no more than $100 for each separate willful violation.
The Act Does Not Currently Answer:
- How this law will impact employers who have PTO (paid time off) policies if the policies limit what the PTO can be used for and don't include all absences allowed under the OHFA.
- Whether this law will apply to an employer with 25 employees if not all of them are located in Ohio.
- How the Act will impact record-keeping for exempt employees.
- What type of certification will be necessary for medical leave in excess of three consecutive days.
- Whether the employer may dispute a medical certification, and, if so, how.
- Whether an employer whose existing policy is at least equivalent to the mandated sick leave described in the Act will be entitled to modify its policy as the Act does not currently provide criteria for determining what "equivalent" leave is.
For more information on these or other employment law issues, please contact one of the attorneys in Walter & Haverfield's Employment and Labor Group.
The information in this newsletter is a summary of often complex legal issues and may not cover all the 'fine points' related to a specific situation or court jurisdiction. Accordingly, it is not intended to be legal advice, which should always be obtained in consultation with an attorney.
