There are a number of state specific paid leave laws that fall into two main categories: (1) sick leave, which entitles employees who work for covered employers to accrue paid sick leave; and (2) family leave, which entitles employees who work for covered employers to be compensated for attending to family caregiving needs, such as the birth/adoption of a child or to care for a close family member with a serious medical condition.
This patchwork of paid sick and family leave laws certainly makes compliance difficult for national employers or any employer that operates in more than one state. As paid leave laws and paid family leave programs proliferate through additional states, national employers may join worker advocacy groups in pressuring the Federal Government to enact some uniform standard; however, all proposed federal legislation would set a federal standard, but would not pre-empt the states from adopting broader protections.
Paid Leave Laws
Currently, there are 11 states and the District of Columbia with paid leave laws. Those laws, however, vary in coverage and eligibility requirements for employers and employees, respectively, and in the amounts of paid leave required. Brief summaries of each follow:
Under the Fair Wages and Healthy Families Act, employers with less than 15 employees are given three days or 24 hours of paid sick leave. When an employer has 15 employees or more, full-time, part-time, and seasonal employees can earn one hour of sick leave for every 30 hours worked, up to 40 hours in one year. Accrual begins at the commencement of employment and may be used 90 days after the commencement of employment. Ariz. Title 23, Ch. 2, Art. 8, §§ 23-363, 23-364; Title 23, Ch. 2, Art. 8.1.
California employers of all sizes must provide three days – or 24 hours – of paid sick leave. Employees who work for the same employer for 30 or more days within a year from the commencement of employment may accrue one hour of sick leave for every 30 hours worked. Accrual begins at the commencement of employment and may be used 90 days after commencement of employment. However, California’s Act does not apply to, among others, employees who are covered by a valid collective bargaining agreement if the agreement provides for paid sick leave and government employees who receive a retirement allowance and are employed without reinstatement into his or her respective retirement system. Healthy Workplaces, Healthy Families Act of 2014. Cal. Labor Code §§ 245, 2810.5.
Full-time employees whose employers have 50 or more employees accrue one hour of paid sick leave for every 40 hours worked and can accrue and use up to 40 hours in a year. Accrual begins at commencement of employment and may be used 680 hours after commencement of employment. The Act does not apply to over 68 enumerated service occupations, including waiters and waitresses, office clerks, and office administrative support workers. Public Act 11-52.
DISTRICT OF COLUMBIA
In the District of Columbia, to qualify for paid sick leave, an employee must have worked for the employer for one year without a break in service, not including regular holiday, sick or personal leave granted by the employer, and must have worked at least 1000 hours immediately preceding the requested sick leave. This law specifically excludes independent contractors, students, health care workers participating in a premium pay program, and wait staff and bartenders who work for a combination of wages and tips. Employers with 100 or more employees must provide eligible employees one hour of paid sick leave for every 37 hours worked, not to exceed seven days per year. Employers with 25-99 employees must give employees one hour paid sick leave for every 43 hours worked, not to exceed five days a year. Employees with less than 25 employees must provide one hour of paid sick leave for every 87 hours worked, not to exceed three days per year. Accrual begins at commencement of employment and may be used 90 days after commencement of employment. DC Code § 32-131.01.
In Maryland, employers whose primary work location is in Maryland and who employ 15 or more employees are required to provide earned sick leave. Employees may accrue one hour of paid sick time for every 30 hours worked. They can accrue up to 40 hours in a year and 64 hours at any time. Employees may also carry over up to 40 hours of leave per year under the law. Employers may cap the use of paid leave at 64 hours per year and may also cap the accrual of leave at 64 hours total and 40 hours per year. Accrual begins at commencement of employment and may be used 106 days after commencement of employment. The law excludes, among others, employees who regularly work less than 12 hours a week, certain independent contractors, certain construction workers covered by a collective bargaining agreement, and some employees working on an as-needed basis in a health or human service industry. MD HB 0001.
Employers in Massachusetts of 11 or more employees are required to provide earned paid sick leave. Employees may accrue one hour of paid sick time for every 30 hours worked and can accrue and use up to 40 hours in a year. Employers with 10 or fewer employees are not required to provide paid sick leave, but they must provide unpaid sick leave under the same circumstances. Independent contractors and municipal employees are not eligible for paid sick leave. Mass. Gen. Laws Ch. 149, § 148(c)-(d).
In Michigan, employers with at least 50 employees must provide nonexempt employees one hour of earned sick time for every 35 hours worked, up to a maximum of 40 hours in a year. Accrual begins upon the effective date of the law which was March 29, 2019, or upon commencement of the employee’s employment, whichever is later. Michigan employers can frontload 40 hours of paid sick leave to employees in order to avoid being required to track accruals or allow employees to carry over paid sick leave to another year.
An employee may use accrued earned sick time as it is accrued. However, an employer may require an employee hired after April 1, 2019 to wait 90 days after commencing employment before using accrued paid sick leave. An employer is required to pay the employee at a rate of the normal hourly wage of the employee or the minimum wage established under the Workforce Opportunity Wage Act, whichever is greater. The Act does not provide paid sick leave for certain employees, including but not limited to, individuals who worked less than 25 hours per week the previous year, and employees who are covered by a collective bargaining agreement. MCL 408.963.
New Jersey employees accrue one hour of paid sick leave for every 30 hours worked, and can accrue up to 40 hours in a year. Accrual begins at commencement of employment and may be used 120 days after employment commences. Public employers are exempt from the law if their employees are provided with sick leave at full pay pursuant to any law or rule of New Jersey other than the Act. The law also excludes construction workers covered by a collective bargaining agreement and per diem health care employees. 2019 NJ A1827.
Oregon employers who have 10 employees or more must provide employees with one hour of paid sick leave for every 30 hours worked, up to 40 hours per year. Accrual begins at the commencement of employment and accrued hours may be used 91 days after commencement of employment. Oregon’s paid sick leave law does not apply to employees who are covered by a collective bargaining agreement, who are employed by a labor organization referral system and whose benefits are provided by a multiemployer-employee trust or benefit plan, or employees who receive paid sick leave under federal law. ORS §§ 653.256, 659A.885.
Rhode Island employees of employers with 18 or more employees accrue one hour of paid sick time for every 35 hours worked and may accrue and use up to 24 hours in 2018, 32 hours in 2019, and 40 hours in 2020. The accrual begins at the commencement of employment or the law’s effective date, whichever is later. Employees of local municipalities, state and federal governments, and per diem nurses who meet certain specifications are not covered by Rhode Island’s paid sick leave law. 2017 RI H5413.
Vermont employees accrue one hour of paid sick time for every 52 hours worked and can use up to 40 hours in a year. The law does not apply to, among others, employees who work for 20 or fewer weeks in a year on a job scheduled to last 20 weeks or fewer, employees who average less than 18 hours of work per week in a year, per diem and intermittent health care or long-term care facility employees, and state employees who are exempt from state classified service. 21 Vt. Stat. §§ 384, 481-485, 345; 29 Vt. Stat. § 161.
Washington employees accrue one hour of paid sick time for every 40 hours worked. Accrual begins at the commencement of employment and may be used 90 days after commencement of employment. Workers who are exempt from Washington state minimum wage laws are not eligible for paid sick leave. RCW 49.46.005, 49.46.020, 49.46.090, 49.46.100.
Paid Family Leave
Currently, four states – California, New Jersey, New York, and Rhode Island—have enacted legislation to create paid family leave laws. Washington D.C. has also engaged a paid family leave program, but it is not effective until July 1, 2020. As with the individual state paid sick leave laws, paid family leave laws also vary greatly among the states providing between 4 weeks to 12 weeks of benefits, and different amounts of weekly compensation.
The interesting distinction between paid sick leave laws and paid family leave laws is that all four state family leave laws provide paid leave as funded through employee-paid payroll taxes and are administered through state respective disability programs. This is different from sick leave laws, which are funded by the employers and are not tied to a state program of any sort.
The California Paid Family Leave insurance program provides up to six weeks of paid leave to care for a seriously ill child, spouse, parent, or registered domestic partner, or to bond with a new child. The benefit amount is approximately 55% of an employee’s weekly wage, from a minimum of $50 to a maximum of $1252. The program is funded through employee payroll taxes and is administered through the state’s disability program. Assembly Bill No. 908.
On January 31, 2019, New Jersey passed its Family Leave Act, which applies to employees who have worked for their employer for a minimum of 12 months and have worked 1,000 hours in the last 12 months preceding the need for leave. Currently, the law applies to employers employing 50 or more employees, without regard to employee location, working at least 20 or more calendar workweeks in the current or previous calendar year. Beginning in June, 2019, the law will apply to employers employing 30 or more employees. Eligible employees are entitled to take 12 weeks of leave in a 12 month period. It also increases intermittent leave allotments from 42 days to 56 days in a 12 month period. Additionally, employees are entitled to 85% of their weekly wage, with a maximum of 70% of the statewide average weekly wage. New Jersey Temporary Disability Benefits Law.
New York provides paid family leave for an employee to bond with a newly born, adopted, or fostered child, care for a family member with a serious health condition, or assist loved ones when a family member is deployed on active military duty. Employees of private employers who work a regular schedule of 20 or more hours per week are eligible after 26 consecutive weeks of employment. Employees who work a regular schedule of less than 20 hours per week are eligible after working 175 days, which do not need to be consecutive. The benefits phase in over four years. From January 1, 2019 to January 1, 2020 the maximum leave period is 10 weeks, and increases to 12 weeks starting January 1, 2021. An employee may receive 55% of an employee’s average weekly wage, but is capped at a maximum of 55% of the state average weekly wage starting in 2019. The state average weekly maximum increases annually to 60% in 2020 and 67% in 2022. The program is funded by employees through payroll deductions. New York S6406.
The Rhode Island Temporary Caregiver Insurance Program applies to employees who earn at least $12,600 in base period wages in Rhode Island and who have paid into the Temporary Caregiver Insurance Program fund. The program provides 4 weeks of paid leave for the birth, adoption or fostering of a new child or to care for a family member with a serious health condition. In addition, it provides up to 30 weeks of paid leave for a worker’s own disability. It provides a minimum benefit of $98 and maximum of $852 per week, based on earnings. The program is funded by employee payroll taxes and administered through the state’s temporary disability program. Rhode Island Title 28, Chapter 28-41, Section 28-41-35.
Any employer operating in more than one state needs to be proactive in having appropriate policies and procedures in place for each of its locations. Unless the Federal Government acts with a national law that preempts all other state laws, employers will need to be alert to the requirements of each state in which they operate. Members of Dickinson Wright PLLC’s Labor and Employment Department can assist employers with achieving compliance and satisfying the myriad of requirements in every state where they are located.
About the Authors:
James B. Perry is a Member in Dickinson Wright’s Detroit office where he assists clients in all areas of labor and employment law. He can be reached at 313-223-3096 or firstname.lastname@example.org and you can visit his bio here.
Dalia Abdow is a law clerk in Dickinson Wright’s Troy office.