It all started in San Francisco. Twenty years ago, the city passed the first law requiring private employers to grant employees a bank of sick days that they could use when they were ill or injured. Over time, that mandate has expanded:  

• across the country – to 18 states and at least 20 localities; 

• in uses – that go well beyond an employee being too sick to come to work;  

• in duration – from 24 hours per year to as many as 176 hours of combined paid and unpaid time; and  

• in directives – regarding eligibility, accrual, requested documentation, notice, and carryover.  

The end result for employers, especially those with employees scattered across multiple states, is a morass of legal requirements that overlap imperfectly and create an ever-broadening web of compliance challenges.  

What Can Sick Time Be Used For?  

States and localities are continuously expanding the reasons for which employees may use their legally-mandated paid sick time.  Uses include: 

• an employee’s own illness, injury or need for preventive medical care; 

• to care for or assist immediate and extended family members who are ill, injured or need to be escorted to a medical care appointment; 

• a mental health wellness day; 

• childcare or school closures, due to a public health emergency, public disaster, weather, or unexpected occurrences; 

• office closures, due to a public health emergency, public disaster, weather, or unexpected occurrences; 

• assistance, treatment, legal proceedings or safety measures because an employee or family member has been the victim of criminal behavior, which may include a family offense matter, sexual offense, stalking, human trafficking, criminal harassment workplace violence;  

• to quarantine or isolate because of risk of infecting others with a communicable disease; 

• parental leave; 

• to attend a school-related conference, meeting, function or other event; 

• to care for a minor child or family or household member who is dependent on daily care due to a disability;  

• to apply for or seek to maintain or restore subsistence  benefits or housing for an employee or an employee’s family member or care recipient; 

• bereavement; and 

• to attend to financial or legal needs after the death of a family member. 

 How Much Sick Time?  

The amount of time required to be paid as sick time varies as well.  Most of the state and local laws follow a formula of awarding one hour of paid sick leave for every 30 hours worked.  Some reduce that to a ratio based on every 35 or 40 hours worked.   

The time also is typically capped at a maximum accrual per year.  Arizona currently has the lowest cap of 24 hours, which applies to small employers.  Most laws set the cap at 40 hours per year, but states are and localities have more recently been increasing that to a cap of 48 hours, or even 56, 64, or 72 hours, most often for larger employers.  West Hollywood, California has the largest mandate, permitting employees to accrue up to 96 hours of paid time off for expansive purposes and an additional 80 hours of unpaid time off for medical reasons related to the employee or a family member.   

Under What Conditions?  

The laws vary as to whether employees are eligible to accrue and use paid sick time immediately upon hire (as in New York and Colorado), or only after some waiting period.  The most common waiting period is 90 days (e.g., California and most of its localities, Illinois, Washington, and Washington, D.C.), while some states like New Jersey and Connecticut require 120 days of employment. 

The laws usually permit employers to request documentation, such as a note from a medical provider, for absences lasting three or more than three consecutive days.  Some laws, however, like Connecticut’s, prohibit employers from asking for any documentation.  Other laws, like New York City’s, require the employer to bear any cost associated with the employee obtaining the documentation. 

Although the laws usually permit employers to enforce standard absence policies that require employees to provide notice when they are not reporting to work, some like New York City require that any such requirements be expressly stated in the employer’s written policy. 

The rules on carryover also vary widely.  Some states and localities permit an employer to front-load the time and thereby avoid any carryover.  Others, like New York State, provide that even if the time is front-loaded, employees must still be permitted to carry over unused time, but they can be restricted from using more than the annual allotment.  Some laws cap carryover at one year’s annual accrual.  Other laws, such as California and most of its localities with paid sick leave laws, permit employees to carry over and use up to 80 hours in a one-year period. 

Why Are Variations Challenging for Employers? 

Organizations that have employees working in multiple states or localities with varied sick time laws need to determine how best to comply with the laws.  For some employers, each employee receives only that which is required by the law applicable to that employee’s work location.  The challenge with that approach is two-fold.  First, it can be hard for managers to keep the policy straight, especially with a geographically-dispersed team.  Second, it can be bad for morale as some employees in legally-generous locations enjoy ample paid time off, while other employees are left with little or nothing by way of a comparable benefit. 

Other employers endeavor to provide the same benefit for all their employees.  Finding and maintaining the highest common denominator can become immensely challenging, though, particularly as the sick time laws continue to diverge.  An employer that permits use of sick time for literally every reason denominated above is just one step shy of offering employees a bank of paid time off that they can use for any reason.  Unlike employer-drafted paid time off policies, however, those that are meant to comply with paid sick time laws need to permit accruals and carryover at levels that may be too generous for an employer to feel reasonably comfortable offering to its entire U.S. workforce.  Also, paid sick time laws apply to all employees at an organization, not just those working full-time.  Most employer-drafted paid time off policies are not as generous with part-time and temporary employees.   

What Is the Best Solution? 

Legal compliance needs to be a given for every employer.  Beyond that, however, employers have flexibility in whether and how to structure paid sick time policies.  As states and localities continue to adopt and revise these laws, employers are best served by reviewing their policies with legal counsel.  Once a year is not too frequent on this subject, nor should it be all that expensive if the employer maintains a regular annual practice of confirming new legal changes.  Without that regular upkeep, however, because of the variability in legal requirements, employers that have employees dispersed across the country should anticipate that a seemingly simple paid sick time policy may require multiple decision points and additional lawyer hours in order to get it right from a legal compliance and organizational culture perspective. 

By Tracey I. Levy