There are some jurisdictions in the United States that have laws which require employers to provide a certain amount of pay when an employee is absent from work due to an illness. This is called mandatory paid sick leave. Although some employers voluntarily offer their own sick leave programs, some jurisdictions require that all employers offer some form of sick leave.
In addition, the sick leave that is provided by an employer within these jurisdictions must meet that jurisdiction’s requirements for sick leave. In other words, an employer may provide its employees with more paid sick leave than what is mandated in the jurisdiction but they are not permitted to provide less.
Mandatory paid sick leave laws provide paid sick leave as long as the employee works in the jurisdiction. An employee is typically not required to reside in the jurisdiction in which they are employed.
The Family and Medical Leave Act (FMLA) is a federal law that requires covered employers to provide employees who qualify with a protected job and unpaid leave for medical and family circumstances which qualify under the Act. Pursuant to the FMLA, the protected leave must last up to 12 weeks per year.
However, there is no pay requirement under the FMLA. This does not appear to conflict with any state laws which mandate paid sick leave.
This means that in states which have mandatory sick leave, employees are entitled to whatever amount of paid sick leave that the state provides. This is in addition to the 12 weeks of unpaid medical or family leave which is mandated by federal law.
Which States Require Mandatory Sick Leave?
There are some states that require mandatory sick leave. Connecticut passed a version of mandatory sick leave in 2011 which applies to all employers that employ more than 50 employees.
Connecticut requires employers to give 1 hour of paid sick leave for every 40 hours an employee works. In Connecticut, paid sick leave only applies to hourly employees. It does not apply to temporary employees or independent contractors.
There is a similar law in Washington, D.C. Employees that work for an employer that employs more than 100 employees may take up to 1 week of sick leave. A business that employs 25 to 99 employees may provide those employees with up to 5 days of paid sick leave.
Businesses that employ less than 25 employees are required to grant up to 3 days of paid sick leave. In contrast to other states, D.C. also provides safe leave. Safe leave provides an employee with the right to take leave if they are a victim of domestic violence, sexual assault, and stalking.
California also has a mandatory paid sick leave law. In addition, if an employee has a serious illness, the State of California has laws regarding disability insurance which may provide assistance.
Employees in Arizona can earn 1 hour of paid sick leave for every 30 hours they work. An employee is only permitted to accrue 24 hours of paid sick leave per year if their employer has 15 or fewer employees. If an employer has more than 15 employees, an employee can accrue 40 hours of paid sick leave.
As of April 2020, there are several states that have enacted laws which require paid sick leave to some extent, which include:
- California;
- Connecticut;
- Maine, which does not take effect until 2021;
- Maryland;
- Massachusetts;
- Michigan;
- Nevada;
- New Jersey;
- Oregon
- Rhode Island;
- Vermont; and
- Washington.
Which Cities Require Mandatory Paid Sick Leave?
Certain cities and counties have their own mandatory paid sick leave laws which are independent of the state laws governing those issues. Paid sick leave is still subject to employer liability, even in cities and counties with their own laws.
As of 2019, cities with their own mandatory paid sick leave laws include:
- California:
- Berkeley;
- Emeryville;
- Los Angeles;
- Oakland;
- San Diego;
- San Francisco; and
- Santa Monica;
- Illinois:
- Chicago; and
- Cook County;
- Maryland:
- Minnesota:
- Duluth;
- Minneapolis; and
- St. Paul;
- New York:
- New York City; and
- Westchester County;
- Pennsylvania:
- Philadelphia; and
- Pittsburgh;
- Texas:
- Austin;
- Dallas; and
- San Antonio; and
- Washington:
City and state laws may have different regulations regarding how much paid sick leave time may be accrued and which employers are eligible. If a business in a city which has both city and state mandatory paid sick leave laws, that business must honor the law which provides the most paid sick leave to employees.
The first city in the United States to pass mandatory paid sick leave law was San Francisco. These laws went into effect in 2007.
Seattle enacted laws in 2012 that exempt employers with less than 5 employees. Also included in Seattle’s laws is safe leave.
A mandatory paid sick leave law was struck down in Milwaukee. This is due to a Constitutional provision which specifically bans mandatory paid sick leave laws.
What are Some Legal Remedies for Mandatory Paid Sick Leave Violations?
Legal remedies may be available when an employer violates mandatory paid sick leave laws. An employee should notify their employer’s human resources department, if available, and exhaust all available administrative remedies.
An employee may also report the issue to the Equal Employment Opportunity Commission (EEOC) or the Wage and Hour Division. If the employee is unable to reach a satisfactory resolution, they may be permitted to file a private civil lawsuit.
How Does COVID-19 Affect Mandatory Paid Sick Leave Rights?
COVID-19 has had an effect on mandatory paid sick leave rights for employees. The Family First Coronavirus Act (FFCRA) was created to address issues which arise during the pandemic. It requires employers to provide paid sick leave for an employee if they are absent from work due to a COVID-19 related issue.
Pursuant to the FFCRA, subject to certain exceptions, an employer with 500 or fewer employees is required to make 80 hours of paid sick leave available for their full-time employees.
For a part-time employee, an employer must make available the equivalent of the average number of hours scheduled over 2 weeks. In order to be entitled to take paid sick leave pursuant to the FFCRA, an employee must meet one of the following criteria:
- The employee is subject to a federal, state, or local quarantine isolation order due to COVID-19;
- The employee has been advised by a healthcare professional to self-quarantine due to COVID-19 concerns;
- The employee is experiencing symptoms of the COVID-19 virus and is seeking a medical diagnosis;
- The employee is caring for an individual that is subject to an order as outlined in subparagraph (1) or has been advised as outline in subparagraph (2);
- The employee is caring for their child if the school or childcare facility is closed due to COVID-19; or
- The employee is experiencing another substantially similar condition specified by the Secretary of Health and Human Services.
If an employer violates the mandatory sick pay provisions or the anti-retaliation provisions of the FFCRA will be considered to have violated the Fair Labor Standards Act (FLSA). The FLSA is a federal law which governs wage and hour standards for public and private employers. If an employer fails to provide mandatory sick pay as required, it will be considered to have failed to pay its employees their minimum wages in violation of the FLSA.
Do I Need an Attorney for Issues With Mandatory Paid Sick Leave?
Yes, it is essential to have the assistance of a worker’s compensation lawyer for any issues related to mandatory paid sick leave. A lawyer can answer questions regarding paid sick leave for both employers and employees. Your attorney will provide you with information regarding your local paid sick leave laws.
Your attorney will also assist you with filing a claim if your employer fails to provide you with the mandated paid sick leave you are owed. If necessary, your lawyer can assist you in filing a civil lawsuit against your employer, if necessary. Your lawyer will represent you during any required court appearances.
