To be a major league legal patchwork, you need federal involvement. It has something to do with the Supremacy Clause of the Constitution.
With the paid sick leave patchwork, until Labor Day 2015, the federal government had stayed on the sideline, supporting paid sick leave, introducing bills requiring it, but essentially not participating as the patchwork developed in earnest beginning in 2012 with cities and states.
On Labor Day 2015, President Obama signed Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors which, as its name suggests, requires federal contractors to provide employees with paid sick leave. The EO directed the Secretary of Labor to issue regulations by September 30, 2016 to implement the EO. After a notice and comment period, on September 30, 2016, the U.S. Department of Labor issued its Final Rule to implement EO 13706.
With 466 pages of commentary and regulations, the federal contribution to the paid sick leave patchwork is the weightiest, by far. I suspect that if you added all of the pages of the 30+ paid sick leave jurisdictions, and all of the guidance that has been issued by those jurisdictions, and all of the postings that have been required in those jurisdictions, you would come up short of the DOL’s 466 pages.
There’s much to digest in those 466 pages, including a few items not typically found in PSL legislation thus far. For now, the basics are:
- The EO applies to certain government contractors who enter into certain government contracts after January 1, 2017.
- Covered employees accrue one hour of paid sick leave for every 30 hours work “on or in connection with” a covered contract.
- Contractors may limit the maximum accrual to 56 hours per accrual year;
- Contractors may frontload at least 56 hours at the beginning of the accrual year to avoid accruing time off;
- Employees may use the time for the typical reasons set out in other PSL laws and including for reasons related to domestic violence, sexual assault or stalking. The definition of “family member” is very broad and includes an individual “related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”
- For foreseeable need to use PSL, an employee must give at least seven calendar days’ notice; for an unforeseeable need, as soon as is practicable.
- An employer may require certification of the need for leave if the employee is absent three or more “consecutive full days” provided the employer tells the employee of this requirement prior to the employee’s return to work.
- There is a safe harbor. If employers already provide paid sick leave as set forth in the law, they are in compliance and do not need to provide any additional PSL.
- The regulations do not preempt any other PSL requirements, such as state or local law. Where an employer is subject to multiple PSL obligations, the employer must comply with the requirement that is “more generous to employees.”
This weekend’s work is to read and digest the 466 pages. More insight to come next week!