Private companies are not required by the federal government to provide paid sick leave. Once an employer has at least 50 employees within a 75-mile radius) Family and Medical Leave Act (FMLA) unpaid sick leave requirements kick in. But this is only for employees who have been with the organization for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months.
Increasingly, however, other state and local jurisdictions are requiring private employers provide paid sick leave. And here’s the catch: The rules apply to where the employee works, not where the employer is located.
This is an important distinction for Texas employers with out-of-state locations or remote workers. Arizona, California, Connecticut, Massachusetts, Oregon, Vermont, Washington, the District of Columbia, and Puerto Rico have passed statewide laws. So have certain counties and municipalities including Cook County (Illinois), Montgomery County (Maryland), Spokane (Washington), and St. Paul (Minnesota). The laws are even more complex in New Jersey and California, where more than twenty separate municipalities have passed their own paid sick leave laws. And with legal battles over the legislation in many of these and other jurisdictions, who is covered and how they’re covered is ever changing.
To help determine a company’s obligations, it’s important to keep an eye on the paid time off regulations within each jurisdiction in which you employ workers. Pay close attention to these main areas that can differ from location to location:
- Definition of who is eligible. Your company size and the industries in which you conduct business can affect your employer eligibility. Not all employees are eligible, either, even if they work in an area with strengthened legislation.
- Accrual time and usage. Laws can vary on when employees can start accruing paid time off and how much can be taken. For example, some jurisdictions accrue one hour of paid sick leave time for every 30 hours worked. Others accrue at different rates, such as 1 hour for every 40 hours worked. Some jurisdictions permit front-loading leave entitlement, instead of accruing leave on hours worked. Laws will also vary on how much paid sick time an individual may take each year.
- Carryover allowances and caps on accrual. Pay close attention to whether employees can carry over accrued unused sick leave and whether employers may institute an annual cap on accrual. Some laws permit employers to pay for unused leave annually instead of allowing a carry over of unused leave hours.
- Qualifying use. Paid sick leave requirements can differ when it comes to which events are eligible. Many extend qualifications to the care of a family member, and others can extend leave for reasons such as domestic violence, stalking or a public health emergency.
- Notices and recordkeeping. Workplace posting or individual notices may be required; records may also be required for a certain number of years. As far as paperwork from employees, many laws limit an employer’s ability to require documentation to prove why the employee was gone and others cover advanced notice requirements as well.
- Enforcement. Look for specific anti-retaliation provisions and enforcement allowances as well as fines and penalties for non-compliance.
When hiring out-of-state employees, or even out-of-town employees in states like California and New Jersey, pay close attention to paid time off regulations that may differ from your own. This is particularly true with respect to part-time employees who may not otherwise be eligible for PTO, vacation, or sick time under a company’s regular leave policies. Employers with individuals in several of these locations may even choose to adopt the most generous provisions of each law to create a uniform policy that works in all locations. This is typically less administratively burdensome than creating policies unique to each location.
If it’s been a while since you’ve updated your leave policies, it may be time to do so. Certain aspects may need to be revised, whether remote workers are on your payroll or not.
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The BTD Blog is a legal resource about issues important to Texas employers. The blog is written by Amy Beckstead, Jana Terry, Connie Ditto, and Sara Garcia, who are all attorneys at Beckstead Terry Ditto PLLC.