Complete Payroll Solutions

Sick Leave: The 10 Most Common Issues Employers Face

by Patricia A. Lyons-Bousquet, J.D., SHRM-SCP, SPHR on Nov 27, 2020 5:26:50 AM

Between the flu and COVID-19, odds are, you’ve had employees out sick recently – or will at some point in the coming months. With all the recent changes to sick leave laws, you may be overwhelmed by how to handle requests as they come in.

At Complete Payroll Solutions, we provide outsourced HR support, helping clients throughout the Northeast understand how to comply with employment laws and regulations. A question we’ve been getting asked a lot lately is what to do about sick time. To help you understand how to handle the most common issues you’re likely to face with sick leave, here we’ll discuss: 

  • Is it required in my state
  • Does sick leave have to be paid
  • Who is eligible
  • What qualifies
  • How does COVID-19 impact sick leave
  • Can an employer deny sick time
  • What happens if an employee abuses sick leave 
  • Do employers have to pay out unused accrued sick time
  • How do city and county leave laws coordinate with state leave laws
  • If I am not in a jurisdiction that mandates sick leave, am I off the hook

After reading this, you will understand your responsibilities and what you need to do to avoid fines for non-compliance in your state.

What is sick leave?

Sick leave is either a paid or unpaid employee benefit that allows workers to take time off from work to take care of their own health needs. The idea is that by allowing your workers to take time off to recover, you’ll help keep the rest of your workplace healthy and productive. In addition to taking sick leave to care for the employee’s own health issues, in some states, laws also allow workers to take sick time to care for a family member.

Since there are so many different regulations governing sick leave, below we address some of the most common questions we get from clients on this topic.

10 Most Common Issues With Sick Leave

1. Does my state require sick leave?

With the exception of government contractors, there are currently no federal requirements mandating you to provide sick leave.

However, some state and local laws require employers to provide sick leave. These laws are common in the Northeast and exist in the following states:

State

Eligible Employers

Paid Sick Leave Use

Accrual Rate & Cap

Waiting Period

Carryover Rules

Connecticut

Employers with 50+ employees;

employees must work an average of 10 or more hours to be eligible


Employee, spouse, or child’s:


• Illness, injury, or health condition

• Medical diagnosis or preventive medical care

• Care or treatment of physical or mental illness

• Victim or domestic violence or sexual assault

1 hour of paid sick leave for every 40 hours worked


Max = 40 hours

per year

After completing 680 hours of work

Max = 40 hours

Maine

Employers with 11 or more employees who work more than 120 hours annually (does not include seasonal workers)

Any reason, not just sick leave


1 hour for every

40 hours worked


Max = 40 hours per year

After 120 days of employment

Max = 40 hours

Massachusetts

All employers with 11 or more employees must provide paid leave.

Employers with fewer than 11 employees must provide leave, but it does not need to be paid.

Exemptions – U.S. Govt. workers and students in a college work-study program.


Employee, child, spouse, parent, or parent of spouse to:


• Care for a physical or mental illness, injury, or medical condition

• Professional medical diagnosis or care

• Preventative medical care or routine appts.

• Service after domestic violence

• Travel to and from a qualifying appt.

1 hour for every

30 hours worked


Max = 40

90 days

Max = 40 hours, unless the sick leave is provided as a lump sum in the beginning of the year

New Jersey

All employers, regardless of size


Employee or family member (broadly defined) to:


• Diagnosis, care, treatment, or recovery from mental or physical illness

• Injury or other adverse health condition

• Preventative medical care

• Seeking services following domestic or sexual violence

• Workplace or child’s school closure due to public emergency

• Time needed to attend a child’s school-related conference, function, etc.

1 hour for every

30 hours worked


Max = 40 hours per year

120 days

Max = 40 hours

New York – accrual could begin on 9/30/20

All private-sector employers

Employee or family member’s (broadly defined):


• Mental or physical illness, injury, or health condition

• Diagnosis, care, and treatment of a mental or physical illness, injury, or health condition

• Dealing with being the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking


1 hour per 30 hours worked


Accrual caps are based on the number of employees:


• Less than five employees and a net income in excess of $1 million in the previous tax year = 40 hours

• 5-99 employees = 40 hours 

• 100 or more employees = 56 hours


Less than 5 employees and a net income of $1 million or less in the previous year = 40 hours of unpaid sick leave

January 1, 2021


Further rules on waiting periods are yet to be announced

All earned but unused paid sick leave


A cap on carryover has not yet been announced

Rhode Island

Employers with 18 or more employees must offer paid sick leave.

Employers with fewer than 18 employees must provide unpaid sick leave.


Employee or family member to:


• Stay home when they are too sick to work

• Seek care when injured

• Attend a routine medical appointment

• Deal with the impact of domestic violence, sexual assault, or stalking

1 hour for every 35 hours worked


Max = 40 hours

90 days

All accrued but unused paid sick time


Employer can opt to pay out

Vermont

All employers


Exempt:


• Government employees

• Employees working an average of less than 18 hours per week


Employee or family member to:


• Obtain health care

• Travel to an appointment related to long-term care

• Address effects of domestic violence, sexual assault, or stalking

• Deal with workplace closures due to public health

1 hour per every 52 hours worked


Max = 40 hours

Can be used as it accrues or set a waiting period of up to 1 year

Max = 40 hours


If a lump sum is provided, no carryover required

For information on laws outside of the Northeast, we’ve produced a summary of the policies in all states with paid sick leave laws

In addition, some states, including New York and New Jersey, have county and city regulations in addition to the state laws.

2. Does sick leave have to be paid?  

On a federal level, since there’s no requirement for you to provide sick leave, there’s likewise no requirement that any sick leave that you provide be paid. Again, there is an exception for federal contractors.

When it comes to individual states, there may be different requirements. Regulations in each state can require sick leave and also include provisions for paid leave depending on the number of employees you have.  

For example:

  • Vermont requires employers with over five employees to provide paid leave 
  • Connecticut employers don’t have to provide paid leave until they have 50 or more employees
  • In Massachusetts, employers of all sizes are required to provide sick leave; however, it doesn’t have to be paid unless you have more than 10 employees

3. Who is eligible? 

In states where it’s required, most employees are eligible for sick leave benefits. These include:

  • Part-time workers
  • Seasonal employees
  • Temporary employees

There are a few exceptions to eligibility in some states, which we’ve outlined in the chart above.

4. What qualifies? 

The allowable uses for sick time vary by state but generally include:

  • Physical or mental illness, injury, or health condition
  • Routine/preventative care
  • Dealing with the effects of domestic violence, sexual assault, or stalking

In some cases, only employees are eligible to take sick leave. However, many states allow workers to take sick leave to care for a family member as well. The definition of “family member” varies widely under state laws.

For instance, regulations enacted earlier, like those in Connecticut and Massachusetts, include narrow definitions of “family member,” while more recent regulations, such as New York, provide a significantly broader definition.

5. How does COVID-19 impact sick leave? 

While the Families First Coronavirus Response Act (FFCRA) leave mandate has expired, some states like Massachusetts still require that employers make paid leave time available to employees for COVID-related illnesses, quarantine, and vaccinations through April 1, 2022. Others like Nevada mandate paid COVID-19 vaccination leave for certain sized employers so be sure to check your state’s laws to see what leave you may be required to provide as a result of the pandemic.

6. Can an employer deny sick time? 

When an employee doesn’t have a qualifying reason for requesting sick leave, you can deny the request but you’ll want to make sure your action is not seen as discriminatory or retaliatory.

If an employee requests sick leave for a reason that qualifies under the applicable leave law, you generally can’t deny the request, even without much advance notice, since many regulations limit the amount of notice you can require.

Similarly, individual states may restrict when you can request medical documentation to substantiate an employee’s leave. Many laws only allow you to request documentation when an employee’s been out on sick leave for three consecutive workdays. However, if your employee is required to but doesn’t provide the requested materials, you may have certain rights. For example, in Massachusetts, employers have the right to take back sick pay.

7. What happens if an employee abuses sick leave? 

Sick leave abuse can result in lost productivity and profits so it’s important to recognize it early and intervene before it escalates. The first step is to have a clearly written policy that specifies the expectations and guidelines for using sick leave. And be sure to enforce the policy fairly and consistently with appropriate action.

You or the employee’s manager should also talk with the employee to determine the cause of the abuse. If the employee is experiencing a medical issue, it may trigger protections under the federal Family and Medical Leave Act (FMLA) or similar state law.  If they’re dealing with personal problems, you’ll want to refer them to your organization’s employee assistance program, if you have one.

If sick leave abuse persists, you might need to begin the discipline process. If so, remember to document, document, document!

8. Do employers have to pay out unused accrued sick time? 

Several state laws require that you pay out accrued vacation time upon termination of employment. Maine, Massachusetts, New Hampshire, New York, and Rhode Island are among these states. 

Otherwise, unless you’re required under an employment contract, collective bargaining agreement, or other legally binding agreement, you’re not mandated to pay employees for accrued but unused sick or personal time.

It’s important to note that many companies have moved to Paid Time Off (PTO) policies that combine vacation, sick, and personal time. Remaining PTO when an employee leaves is generally treated the same as vacation days under the law. In the states that require payment of accrued, unused vacation time, that means PTO would also become payable when an employee is terminated.

9. How do city and county leave laws coordinate with state leave laws?

Many of the cities and counties that have sick leave regulations are located in states that also have sick leave mandates. These local and state laws may have different rules, like maximum accrual limits, and also which employers the law applies to.

If your company is in a city with both city and state paid leave laws, you’ll need to follow whichever is most generous to the employee.

10. If I am not in a jurisdiction that mandates sick leave, am I off the hook?

Not necessarily. Depending on your business size, you might need to provide unpaid leave.

Under the Family and Medical Leave Act (FMLA), employers with more than 50 employees within a 75-mile radius must provide employees with up to 12 weeks of unpaid leave per year for qualifying reasons. Some states also provide medical and parental leave laws that may have more generous provisions than the FMLA. 

How to Stay Compliant With Sick Leave Laws

Between FMLA as well as state laws, there’s a lot to consider when it comes to dealing with sick leave requests. We know that it can be confusing to make sure you’re handling these requests correctly and not unlawfully denying leave. 

The first step is to make sure your state law requirements are reflected in your HR policies and employee handbook. You may also want to invest in an automated time and attendance system to help you properly track sick leave. 

For more guidance, Complete Payroll Solutions can help you understand the nuances of complying with the various sick leave rules. To learn about the support we can offer your business, visit our dedicated outsourced HR page.

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