Paid Sick Leave Expands with President Obama’s Labor Day Executive Order
On Labor Day, President Obama signed an Executive Order (“Order”) forcing companies who contract with the federal government to provide paid sick leave to their employees. The Order tracks the language in many states’ paid sick and crime victim leave laws. For employers who currently contract with, or plan on contracting with, the federal government, the Order requires a close reading to ensure compliance. Larger companies may already comply with its terms, but smaller companies will want to ensure its leave policies are in line with its provisions.
The President’s Order, linked here, provides that employers that contract with the federal government on or after January 1, 2017, must provide the ability for their employees to earn up to at least 7 days of paid sick leave annually. The Order states that federal departments shall have in their eligible contracts a clause that, as a condition of payment, all employees in the performance of the contract earn not fewer than 1 hour of paid sick leave for every 30 hours worked. That roughly equates to about 1.3 hours of paid sick leave per 40 hour work week.
Accrued paid sick leave under the Order will carry year over year and be reinstated for employees who are separated but rehired by a covered contractor within 12 months. Leave shall be provided when the employee makes an oral or written request for leave, which includes the expected duration of the leave. Further, in cases where leave is foreseeable, the employee shall provide at least 7 calendar days of advance notice, and in other cases, provide notice “as soon as is practicable.” Paid sick leave can be taken for an absence resulting from a physical or mental illness, diagnosis or care from a physician, care for a specific family member or other individual (described broadly as someone who has the “equivalent of a family relationship”), and for victims dealing with the effects of criminal violence including sexual assault and domestic violence.
Employers have some (limited) rights under the Order. For instance, they may require a certification from a health care provider for paid sick leave used for illness suffered by themselves or family members, but only for leave that lasts for 3 or more consecutive workdays. Such certification must be provided no later than 30 days after the first day of leave. For those taking leave to deal with the effects of various criminal acts of violence and are also out for 3 or more consecutive days, the employer may require certification from “an appropriate individual or organization with the minimum necessary information establishing a need for the employee to be absent from work.” An employer should understand that it must not disclose any verification information and “shall maintain confidentiality about the domestic violence, sexual assault, or stalking” revealed by the certification unless the employee consents or when disclosure is required by law.