Under every PSL law that has been passed, an employee may use PSL to care for him or herself as well as other relationships defined in the law. The recently finalized federal regulations implementing EO 13706, which requires certain government contractors to provide certain employees with paid sick leave, has one of the broadest “relationship” definitions of any PSL law. The regulations allow an employee to use PSL to care for those who are not related at all to the employee and do not live in the same household but are “like” kin.
The Final Rule includes very broad definitions of “parent,” “child” and “spouse.” They then add that an employee can use PSL to care for any other individual related by “blood or affinity whose close association with the employee is the equivalent of a family relationship.” The regulations define this phrase to mean “any person with whom the employee has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship.” (emphasis added).
The DOL gave some examples of who those who would meet the affinity standard:
- “An individual who was a foster child in the same home in which the employee was a foster child for several years and with whom the employee has maintained a “sibling-like” relationship;
- [A] friend of the family in whose home the employee lived while she was in high school and who the employee considers to be like a mother or aunt to her;
- [A]n elderly neighbor with whom the employee has regularly shared meals and to whom the employee has provided unpaid caregiving assistance for the past 5 years and who the employee therefore considers to be like a grandfather to her.” (emphasis added).
Some commentators noted that it would be difficult for contractors to verify whether an affinity relationship exists. No need to worry, the Department of Labor responded, because an employer must take the employee at his/her word. The DOL said that the intention is “to provide paid sick leave in a manner that is not burdensome for employees and does not allow significant intrusion into their personal lives by their employer.” The commentary states that an “employee need only assert that a family or family-like relationship exists,” such as by stating that the employee…needs to accompany a man who is like a brother to him to a doctor’s appointment.”
Once an employee makes such an assertion, the employer’s ability to make further inquiry is extremely limited, some would argue meaningless. The commentary gives an example of “an employee who asks to take leave to care for a close friend who was in a car accident.” The employer may ask “whether that friend is someone whom the employee considers to be like family” [but] the contractor could not demand intimate details upon receiving a positive response to such an inquiry. In other words, an employer must rely on the employee’s conclusory assertion.
The discussion of the final rule notes that this affinity relationship has been used in administering sick leave for federal employees since 1994 and the federal government has not found it to be “unworkable.” I suspect that that standard may not provide much comfort to some private sector employers,
The paid sick leave movement was predicated on the public policy that an employee should not be forced to choose between the employee’s (or a family member’s) health and a paycheck. Sick employees should not be delivering “flu with your fries,” the argument went. These public policies do not apply when an employee takes time off to care for a neighbor or friend. To expand the scope of relationships for which PSL can be used to “like” kin taints that initial rationale and weakens the public policy argument for such laws.