MODEL BILLS

Paid Sick Leave Act

Note: Drafting a paid sick leave bill requires state-specific research, analysis of underlying state and/or local law and consideration of complex policy issues. The National Partnership for Women & Families and A Better Balance are available to do any necessary legal research and drafting, and to work with you to customize this model.

SECTION 1. SHORT TITLE

This Act shall be called the “Paid Sick Leave Act.”

SECTION 2. FINDINGS AND PURPOSE

(A) FINDINGS­—The legislature finds that:

1. Paid sick time is essential to Americans’ economic security. Nearly forty percent of private sector workers and nearly eighty percent of the lowest-income workers do not have any paid sick time. Some workers that have paid sick time are penalized for using it or cannot use this time to care for sick family members. Absences can result in job loss which can devastate a family.

2. Additionally, it is important that paid time off is accessible for the one in four women who report physical or sexual abuse at some point in their lives. Without paid sick and safe days, women are in grave danger of losing their jobs, which can be particularly damaging for survivors of domestic violence.

3. Allowing workers to prioritize the health care and safety needs of their families will create a more productive workforce.

(B) PURPOSE—This law is enacted to protect and promote the health, safety, welfare and economic condition of all working Americans.

SECTION 3. PAID SICK LEAVE

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS

1)      “Agency” means [state, county or city agency responsible for enforcement of labor laws or the county/city agency best suited to enforcing this law, if there is no local labor enforcement agency].

2)      “Domestic violence” means as defined in [state statute or local law].

3)      “Earned paid sick time” means time that is compensated at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked and is provided by an employer to an employee for the purposes described in section 5(C), but in no case shall this hourly amount be less than that provided under 29 U.S.C. §206(a)(1) [or your state or local minimum wage law].

4)      “Employee” means as defined in [state wage and hour law, local law or federal Fair Labor Standards Act (29 U.S.C. § 203(e))] but does not include those who work in [X] for fewer than [#] hours in a calendar year. “Employee” includes recipients of public benefits who are engaged in work activity as a condition of receiving public assistance. [May also specifically add: “Employee” does not include any railroad worker exempted under the Railroad Unemployment Insurance Act, 45 U.S.C. 363(b).]

5)      “Employer” means as defined in [state wage and hour law, local law or federal Fair Labor Standards Act (29 U.S.C. § 203(d))]. For the purposes of this section, “employer” does not include any of the following:

a)      The United States Government.

b)      [For local bills only: The State of X including any office, department, agency, authority, institution, association, society or other body of the state, including the legislature and the judiciary.]

c)      [For local bills only: Any county or local government other than X. OR For local bills if necessary due to limitations on authority of legislative body to determine benefits for locality’s own workers: Any county or local government.]

6)      “Family member” means:

a)      A biological, adopted or foster child, stepchild or legal ward, a child of a domestic partner, or a child to whom the employee stands in loco parentis, regardless of age;

b)      A biological, foster, stepparent or adoptive parent or legal guardian of an employee or an employee’s spouse or domestic partner or a person who stood in loco parentis when the employee or employee’s spouse or domestic partner was a minor child;

c)      A person to whom the employee is legally married under the laws of any state, or a domestic partner of an employee [as defined under X state/county/city law or] as registered under the laws of any state or political subdivision;

d)      A grandparent, grandchild or sibling (whether of a biological, foster, adoptive or step relationship) of the covered individual or the covered individual’s spouse or domestic partner;

e)      A person for whom the employee is responsible for providing or arranging care, including but not limited to helping that individual obtain diagnostic, preventive, routine or therapeutic health treatment; or

f)       Any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

7)      “Harassment” means as defined in [state statute or local law].

8)      “Health care professional” means any person licensed under Federal [or State] law to provide medical or emergency services, including but not limited to doctors, nurses and emergency room personnel.

9)      “Retaliatory personnel action” means denial of any right guaranteed under this section and any threat, discharge, suspension, demotion, reduction of hours, reporting or threatening to report an employee’s suspected citizenship or immigration status, or the suspected citizenship or immigration status of a family member of the employee to a federal, state or local agency, or any other adverse action against an employee for the exercise of any right guaranteed herein including any sanctions against an employee who is the recipient of public benefits for rights guaranteed under this Section. Retaliation shall also include interference with or punishment for in any manner participating in or assisting an investigation, proceeding or hearing under this section.

10)  “Sexual assault” means as defined in [state statute or local law].

11)  “Stalking” means as defined in [state statute or local law].

12)  “Year” means a regular and consecutive 12-month period as determined by the employer; except that for the purposes of sections 5(F) and (H), “year” shall mean a calendar year.

(B) ACCRUAL OF EARNED PAID SICK TIME

After section XXX, the following new section XXX shall be inserted:

1)      All employees shall accrue a minimum of one hour of earned paid sick time for every [#] hours worked. Employees shall not [use] more than [#] hours of earned paid sick time in a year, unless the employer selects a higher limit. [Note: It is also possible to limit accrual: Employees will not accrue more than [#] hours of earned paid sick time in a year, unless the employer selects a higher limit.]

2)      Employees who are exempt from overtime requirements under 29 U.S.C. § 213(a)(1) of the Federal Fair Labor Standards Act will be assumed to work 40 hours in each work week for purposes of earned paid sick time accrual unless their normal work week is less than 40 hours, in which case earned paid sick time accrues based upon that normal work week.

3)      Earned paid sick time as provided in this Section shall begin to accrue at the commencement of employment or on the date this law goes into effect, whichever is later. An employer may provide all paid sick time that an employee is expected to accrue in a year at the beginning of the year.

4)      Employees shall not be entitled to use accrued earned paid sick time until the [#] calendar day following commencement of their employment, [or the # calendar day following the date this law goes into effect, whichever is later,] unless otherwise permitted by the employer. On and after the [#] calendar day of employment, employees may use earned paid sick time as it is accrued.

5)      Earned paid sick time shall be carried over to the following year. Alternatively, in lieu of carryover of unused earned paid sick time from one year to the next, an employer may pay an employee for unused earned paid sick time at the end of a year and provide the employee with an amount of paid sick time that meets or exceeds the requirements of this Section that is available for the employee’s immediate use at the beginning of the subsequent year.

6)      Any employer with a paid leave policy, such as a paid time off policy, who makes available an amount of paid leave sufficient to meet the accrual requirements of this Section that may be used for the same purposes and under the same conditions as earned paid sick time under this Section is not required to provide additional paid sick time.

7)      Nothing in this Section shall be construed as requiring financial or other reimbursement to an employee from an employer upon the employee’s termination, resignation, retirement or other separation from employment for accrued earned paid sick time that has not been used.

8)      If an employee is transferred to a separate division, entity or location, but remains employed by the same employer, the employee is entitled to all earned paid sick time accrued at the prior division, entity or location and is entitled to use all earned paid sick time as provided in this Section. When there is a separation from employment and the employee is rehired within [#] months of separation by the same employer, previously accrued earned paid sick time that had not been used shall be reinstated. Further, the employee shall be entitled to use accrued earned paid sick time and accrue additional earned paid sick time at the re-commencement of employment.

9)      When a different employer succeeds or takes the place of an existing employer, all employees of the original employer who remain employed by the successor employer are entitled to all earned paid sick time they accrued when employed by the original employer, and are entitled to use earned paid sick time previously accrued.

10)  At its discretion, an employer may loan earned paid sick time to an employee in advance of accrual by such employee.

(C) USE OF EARNED PAID SICK TIME

1)      Earned paid sick time shall be provided to an employee by an employer for:

a)      An employee’s mental or physical illness, injury or health condition; an employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; an employee’s need for preventive medical care;

b)      Care of a family member with a mental or physical illness, injury or health condition; care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; care of a family member who needs preventive medical care; or in the case of a child, to attend a school meeting or a meeting at a place where the child is receiving care necessitated by the child’s health condition or disability, domestic violence, sexual assault, harassment or stalking;

c)      Closure of the employee’s place of business by order of a public official due to a public health emergency or an employee’s need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency, or care for oneself or a family member when it has been determined by the health authorities having jurisdiction or by a health care provider that the employee’s or family member’s presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease, whether or not the employee or family member has actually contracted the communicable disease; or

d)      Absence necessary due to domestic violence, sexual assault, harassment or stalking, provided the leave is to allow the employee to obtain for the employee or the employee’s family member:

i.        Medical attention needed to recover from physical or psychological injury or disability caused by domestic violence, sexual assault, harassment or stalking;

ii.       Services from a victim services organization;

iii.       Psychological or other counseling;

iv.       Relocation or taking steps to secure an existing home due to the domestic violence, sexual assault, harassment or stalking; or

v.        Legal services, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic violence, sexual assault, harassment or stalking.

2)      Earned paid sick time shall be provided upon the request of an employee. Such request may be made orally, in writing, by electronic means or by any other means acceptable to the employer. When possible, the request shall include the expected duration of the absence.

3)      When the use of earned paid sick time is foreseeable, the employee shall make a good faith effort to provide notice of the need for such time to the employer in advance of the use of the earned paid sick time and shall make a reasonable effort to schedule the use of earned paid sick time in a manner that does not unduly disrupt the operations of the employer.

4)      An employer that requires notice of the need to use earned paid sick time where the need is not foreseeable shall provide a written policy that contains procedures for the employee to provide notice. An employer that has not provided to the employee a copy of its written policy for providing such notice shall not deny earned paid sick time to the employee based on non-compliance with such a policy.

5)      An employer may not require, as a condition of an employee’s taking earned paid sick time, that the employee search for or find a replacement worker to cover the hours during which the employee is using earned paid sick time.

6)      Earned paid sick time may be used in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.

7)      For earned paid sick time of 3 or more consecutive work days, an employer may require reasonable documentation that the earned paid sick time has been used for a purpose covered by section 5(C)(1). Documentation signed by a heath care professional indicating that earned paid sick time is necessary shall be considered reasonable documentation for purposes of this Section. In cases of domestic violence, sexual assault, harassment or stalking, one of the following types of documentation selected by the employee shall be considered reasonable documentation:

a)      a police report indicating that the employee or the employee’s family member was a victim of domestic violence, sexual assault, harassment or stalking;

b)      a signed statement from a victim and witness advocate affirming that the employee or employee’s family member is receiving services from a victim services organization; or

c)      a court document indicating that the employee or employee’s family member is involved in legal action related to domestic violence, sexual assault, harassment or stalking. An employer may not require that the documentation explain the nature of the illness or the details of the domestic violence, sexual assault, harassment or stalking. If an employer chooses to require documentation for earned paid sick time and the employer does not offer health insurance to the employee, then the employer is responsible for paying all out of pocket expenses the employee incurs in obtaining the documentation. If the employee does have health insurance, the employer is responsible for paying any costs charged to the employee by the health care provider for providing the specific documentation required by the employer. The employer is responsible for paying any costs charged to the employee for documentation of domestic violence, sexual assault, harassment or stalking required by the employer.

(D) EXERCISE OF RIGHTS PROTECTED; RETALIATION PROHIBITED

1)      It shall be unlawful for an employer or any other person to interfere with, restrain, deny the exercise of, or the attempt to exercise, any right protected under this Section.

2)      An employer shall not take retaliatory personnel action or discriminate against an employee or former employee because the person has exercised rights protected under this Section. Such rights include, but are not limited to, the right to request or use earned paid sick time pursuant to this Section; the right to file a complaint with the Agency or courts or inform any person about any employer’s alleged violation of this Section; the right to participate in an investigation, hearing or proceeding or cooperate with or assist the Agency in its investigations of alleged violations of this Section; and the right to inform any person of his or her potential rights under this Section.

3)      It shall be unlawful for an employer’s absence control policy to count earned paid sick time taken under this Section as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.

4)      Protections of this Section shall apply to any person who mistakenly, but in good faith, alleges violations of this Section.

5)      There shall be a rebuttable presumption of unlawful retaliatory personnel action under this Section whenever an employer takes adverse action against a person within 90 days of when that person:

a)      files a complaint with the Agency or a court alleging a violation of any provision of this Section;

b)      informs any person about an employer’s alleged violation of this Section;

c)      cooperates with the Agency or other persons in the investigation or prosecution of any alleged violation of this Section;

d)      opposes any policy, practice, or act that is unlawful under this Section; or

e)      informs any person of his or her rights under this Section.

(E) NOTICE AND POSTING

1)      Employers shall give employees written notice of the following at the commencement of employment or by [Date], whichever is later: employees are entitled to earned paid sick time and the amount of earned paid sick time, the terms of its use guaranteed under this Section, that retaliatory personnel action against employees who request or use earned paid sick time is prohibited, that each employee has the right to file a complaint or bring a civil action if earned paid sick time, as required by this Section, is denied by the employer or the employee is subjected to retaliatory personnel action for requesting or taking earned paid sick time, and the contact information for the Agency where questions about rights and responsibilities under this Section can be answered.

2)      The notice required in section 5(E)(1) shall be in English, [X, X,] and any language that is the first language spoken by at least X% of the employer’s workforce, provided that such notice has been provided by the Agency.

3)      The amount of earned paid sick time available to the employee, the amount of earned paid sick time taken by the employee to date in the year and the amount of pay the employee has received as earned paid sick time shall be recorded in, or on an attachment to, the employee’s regular paycheck.

4)      Employers shall display a poster that contains the information required in (1) in a conspicuous and accessible place in each establishment where such employees are employed. The poster displayed shall be in English, [X, X,] and any language that is the first language spoken by at least X% of the employer’s workforce, provided that such poster has been provided by the Agency.

5)      The Agency shall create and make available to employers, in all languages spoken by more than X% of the [State’s/County’s/City’s] workforce and any language deemed appropriate by the Agency, model notices and posters that contain the information required under section 5(E)(1) for employers’ use in complying with Section 5(E)(1) and (4).

6)      An employer who willfully violates the notice and posting requirements of this Section shall be subject to a civil fine in an amount not to exceed $100 for each separate offense.

(F) EMPLOYER RECORDS

Employers shall retain records documenting hours worked by employees and earned paid sick time taken by employees, for a period of [three] years, and shall allow the Agency access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Section. When an issue arises as to an employee’s entitlement to earned paid sick time under this Section, if the employer does not maintain or retain adequate records documenting hours worked by the employee and earned paid sick time taken by the employee, or does not allow the Agency reasonable access to such records, it shall be presumed that the employer has violated the Section, absent clear and convincing evidence otherwise.

(G) REGULATIONS

The Agency shall be authorized to coordinate implementation and enforcement of this Section and shall promulgate appropriate guidelines or regulations for such purposes.

(H) ENFORCEMENT

[Bill drafting note: There are several different ways to enforce an earned paid sick time law, and a bill can contain a combination of them as long as the jurisdiction permits the types of enforcement selected. The model language includes all options.]

1)      Administrative Enforcement

a)      The Agency shall enforce the provisions of this Section. In effectuating such enforcement, the Agency shall establish a system utilizing multiple means of communication to receive complaints regarding non-compliance with this Section and investigate complaints received by the Agency in a timely manner.

b)      Any person alleging a violation of this Section shall have the right to file a complaint with the Agency within [X days/weeks/months/years] of the date the person knew or should have known of the alleged violation. The Agency shall encourage reporting pursuant to this subsection by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the employee or person reporting the violation, provided, however, that with the authorization of such person, the Agency may disclose his or her name and identifying information as necessary to enforce this Section or for other appropriate purposes.

c)      Upon receiving a complaint alleging a violation of this Section, the Agency shall investigate such complaint and attempt to resolve it through mediation between the complainant and the subject of the complaint, or other means. The Agency shall keep complainants notified regarding the status of their complaint and any resultant investigation. If the Agency believes that a violation has occurred, it shall issue to the offending person or entity a notice of violation and the relief required of the offending person or entity. The Agency shall prescribe the form and wording of such notices of violation including any method of appealing the decision of the Agency.

d)      The Agency shall have the power to impose penalties provided for in this Section and to grant an employee or former employee all appropriate relief. Such relief shall include but not be limited to:

i.        for each instance of earned paid sick time taken by an employee but unlawfully not compensated by the employer: three times the wages that should have been paid under this Section or $X, whichever is greater;

ii.        for each instance of earned paid sick time requested by an employee but unlawfully denied by the employer and not taken by the employee or unlawfully conditioned upon searching for or finding a replacement worker: $X;

iii.       for each instance of unlawful retaliation not including discharge from employment: full compensation including wages and benefits lost, an additional amount of at least $X and equitable relief as appropriate; and

iv.       for each instance of unlawful discharge from employment: full compensation including wages and benefits lost, $X and equitable relief, including reinstatement, as appropriate.

e)      Any entity or person found to be in violation of the provisions of this Section shall be liable for a civil penalty payable to [state/county/city] not to exceed $X for the first violation and, for subsequent violations that occur within two years of any previous violation, not to exceed $X for the second violation and not to exceed $X for each successive violation.

f)       The Agency shall annually report on its website the number and nature of the complaints received pursuant to this Section, the results of investigations undertaken pursuant to this Section, including the number of complaints not substantiated and the number of notices of violations issued, the number and nature of adjudications pursuant to this Section, and the average time for a complaint to be resolved pursuant to this chapter.

2)      Civil Enforcement

a)         The Agency, the Attorney General [or City/County Attorney], any person aggrieved by a violation of this Section, or any entity a member of which is aggrieved by a violation of this Section, may bring a civil action in a court of competent jurisdiction against an employer violating this Section. Such action may be brought by a person aggrieved by a violation of this Section without first filing an administrative complaint.

b)         Upon prevailing in an action brought pursuant to this Section, aggrieved persons shall recover the full amount of any unpaid earned sick time plus any actual damages suffered as the result of the employer’s violation of this Section plus an equal amount of liquidated damages. Aggrieved persons shall also be entitled to reasonable attorney’s fees.

c)         Upon prevailing in an action brought pursuant to this Section, aggrieved persons shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation, including, without limitation, reinstatement to employment, back pay and injunctive relief.

d)         Any person aggrieved by a violation of this Section may file a complaint with the Attorney General [or City/County Attorney]. The filing of a complaint with the Attorney General [or City/County Attorney] will not preclude the filing of a civil action.

e)         The Attorney General [or City/County Attorney] may bring a civil action to enforce this Section. The Attorney General [or City/County Attorney] may seek injunctive relief. In addition to injunctive relief, or in lieu thereof, for any employer or other person found to have willfully violated this Section, the Attorney General [or City/County Attorney] may seek to impose a fine of X [example: $1,000] per violation, payable to the [City/County/State].

f)          The statute of limitations for a civil action brought pursuant to this Section shall be for a period of # years from the date the alleged violation occurred or the date the employee knew or should have known of the violation.

g)         Actions brought pursuant to this Section may be brought as a class action pursuant to the laws of [state].

3)      [City/County/State] officials are hereby authorized to consider, to the maximum extent permitted by law, an employer’s record of noncompliance with this Section in making decisions on [city/county/state] contracts, land use approvals and other entitlements to expand or operate within the [city/county/state]. The [city/county/state] is authorized to either deny approval or to condition approval on the employer’s future compliance.

(I) CONFIDENTIALITY AND NONDISCLOSURE

An employer may not require disclosure of details relating to domestic violence, sexual assault, harassment or stalking or the details of an employee’s or an employee’s family member’s health information as a condition of providing earned paid sick time under this Section. If an employer possesses health information or information pertaining to domestic violence, sexual assault, harassment or stalking about an employee or employee’s family member, such information shall be treated as confidential and not disclosed except to the affected employee or with the permission of the affected employee.

(J) ENCOURAGEMENT OF MORE GENEROUS EARNED PAID SICK TIME POLICES; NO EFFECT ON MORE GENEROUS POLICIES OR LAWS

1)      Nothing in this Section shall be construed to discourage or prohibit an employer from the adoption or retention of an earned paid sick time policy more generous than the one required herein.

2)      Nothing in this Section shall be construed as diminishing the obligation of an employer to comply with any contract, collective bargaining agreement, employment benefit plan or other agreement providing more generous paid sick time to an employee than required herein. Nothing in this Section shall be construed as diminishing the rights of public employees regarding paid sick time or use of paid sick time as provided in [laws of the state pertaining to public employees].

3)      [For State laws] Nothing in this Section shall be construed to supersede any provision of any local law that provides greater rights to paid sick time than the rights established under this Section.

(K) OTHER LEGAL REQUIREMENTS

This Section provides minimum requirements pertaining to earned paid sick time and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for greater accrual or use by employees of earned paid sick time or that extends other protections to employees.

(L) PUBLIC EDUCATION AND OUTREACH

The Agency [or another relevant official, administrative agency] shall develop and implement a multilingual outreach program to inform employees, parents and persons who are under the care of a health care provider about the availability of earned paid sick time under this Section. This program shall include the distribution of notices and other written materials in English, [X, X,] and any language that is the first language spoken by at least X% of the [state’s/county’s/city’s] population to all child care and elder care providers, domestic violence shelters, schools, hospitals, community health centers and other health care providers.

SECTION 4. SEVERABILITY

The provisions of this Act shall be severable, and if any phrase, clause, sentence or provision, or application thereof to any person or circumstance, is declared to be invalid or is preempted by federal law or regulation, the validity of the remainder of this Act shall not be affected.

SECTION 5. EFFECTIVE DATE

This Act shall take effect on XXXX 1, 20XX.