Vermont Earned Sick Time Law: PSL-4Step Analysis

The Vermont Earned Sick Time law was enacted in March 2016. The Vermont Commissioner of Labor has issued “sick time rules” to “clarify practices and policies in the administration and enforcement” of the law. Here, I analyze the law and rules using the PSL-4Step framework.

Step 1: Does it apply?

Effective Date:  January 1, 2017, except that the law does not apply to an employer with five or fewer employees who are employed for an average of no less than 30 hours per week during the previous calendar year, i.e., a small employer, until January 1, 2018. A “new employer” is not subject to the law until one year after the employer hires its first employee. The effective date of the DOL’s rules is January 15, 2017.

Employer Definition: “Employer” includes every type of business entity and any common carrier by rail, motor, water, air or express company doing business or operating with Vermont.

Employee Definition: “Employee” means any person employed by an employer for an average of at least 18 hours per week during a year.  “Employee” does not include

federal employees;

state employees who are either exempt or excluded from the State classified service but not an individual that is employed by the State in a temporary capacity;

an individual under 18 years of age;

an individual employed for 20 weeks or fewer in a 12-month period in a job scheduled to last 20 weeks or fewer;

an employee who works on a per diem or intermittent basis, i.e., who  works only when he or she is available to work, is under no obligation to work for the employer offering the work, and  has no expectation of continuing employment with the employer;

an employee of a “health care facility” or “facility” if the employee only works on a per diem or intermittent basis;

a sole proprietor or partner owner of an unincorporated business who is excluded from the provisions of chapter 9 of this title  (employer’s liability and workers compensation); or an executive officer, manager, or member of a corporation or a limited liability company for whom the Commissioner has approved an exclusion from the provisions of chapter 9 of this title;

an employee of a school district, supervisory district, or supervisory union employed pursuant to a policy on substitute educators who is under no obligation to work a regular schedule and is not under contract or written agreement to provide at least one period of long-term substitute coverage, defined as 30 or more consecutive school days in the same assignment.

Primary Place of Work: An employee whose primary place of work is in Vermont is eligible to accrue and use earned sick time (PSL) under this law, regardless of the employer’s primary location. If an employee’s primary place of work is in Vermont, all of the employee’s hours of work are counted for accrual, regardless of where the work is performed.

 Step 2:  The Benefit

Accrual: One hour of leave for every 52 hours worked, including overtime hours, beginning the first day of employment. An employer may impose a waiting period of up to one year before an employee can use accrued leave (for those employed on January 1, 2017, an employer may require a waiting period that ends no later than December 31, 2017). Between January 1, 2017 and December 31, 2018, an employer may cap use at 24 hours per annual period; this minimum cap increases to 40 hours on January 1, 2019.

NOTE: for small employers, the waiting period must end no later than December 31, 2018.

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Timing of Accrual Calculation:  The amount of accrued sick time shall be calculated as it accrues during each pay period or quarterly, although an employee may use earned sick time as it accrues (assuming the employee is beyond the employer’s waiting period). Continue reading

VT Proposed Sick Time Rules Finalized, Not Yet Adopted

With a January 1, 2017 effective date looming for the Vermont Earned Sick Time law, the Vermont Department of Labor has issued it Final Proposed Earned Sick Time Rules. The Department had issued proposed rules in September 2016. The Department held public hearings and solicited comments on those proposed rules. The comments submitted, the Department’s response summary to those comments and the Final Proposed Earned Sick Time Rules are here.  The Final Proposed Rule has been forwarded to the Legislative Committee on Administrative Rules for its review. The Rule must be adopted to be effective.vermont-1111041_640

The Department made a half dozen changes in response to the comments submitted on the initial proposal. The Department

  • Changed the period for determining whether an employee has worked an average of 18 hours weekly (and is thus eligible to accrue earned time off) from quarterly to annually.
  • Changed the period for determining whether an employee has worked an average of 30 hours weekly for purposes of determining whether an employer is a “small employer” from the last quarter of 2016 to 2016. CHECK
  • Deleted a statement that an employee shall accrue earned sick time on hours paid. This created an ambiguity since employees accrue earned sick time on all hours worked.
  • Added a subsection to clarify that if an employer frontloads the full amount of earned sick time, unused hours at the end of the annual period shall not carryover to the next annual period.
  • Added a few words to clarify that the prohibition on an employer’s requiring an employee to find a replacement for the employee’s absences applies only for absences for purposes authorized by the earned sick time law.
  • Softened a notification requirement suggested in the following footnote by replacing the work “must” with “is well advised.”

For example, a sporting goods store provides its employees with 40 hours of paid vacation time that can also be used as earned sick time, consistent with the Act. Does the store need to provide any separate sick time? No. The sporting goods store does not need to provide additional sick time, but the store must would be well advised to notify the employees that if they use all of their hours for vacation, there will be no additional paid sick time available. (New words in italics.)

I will soon post a PSL-4Step analysis of the Vermont Earned Sick Time Law.