COVID-19: Paid Sick Leave for Government Contractors

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Considering the recent and rapid spread of COVID-19 in the Unites States, government contractors need to be prepared now more than ever to comply with the unique paid sick leave obligations that apply to them. This article — which is part of a series of coronavirus-related guides for federal contractors that Bradley is publishing — provides a user-friendly refresher on key paid sick leave obligations.

Accrual of paid sick leave

  • Federal contractors are required to permit an employee to accrue not less than one hour of paid sick leave for every 30 hours worked on or in connection with a contract covered by Executive Order 13706 (Establishing Paid Sick Leave for Federal Contractors) (see 48 C.F.R. § 22.2105(a)(1); 29 C.F.R. § 13.5(a)(1)).
  • Federal contractors are required to inform each employee, in writing, of the amount of paid sick leave the employee has accrued but not used no less than once each pay period or each month, whichever interval is shorter, as well as upon a separation from employment and upon reinstatement of paid sick leave, pursuant to the Department of Labor’s (DOL) regulations (see 48 C.F.R. § 22.2105(a)(2); 29 CFR 13.5(a)(2); id., § (b)(4)).
  • Federal contractors may choose to provide employees with at least 56 hours of paid sick leave at the beginning of each accrual year rather than allowing the employee to accrue such leave based on hours worked over time (29 C.F.R. § 13.5(a)(3)).

Maximum accrual, carryover, reinstatement, and payment for unused leave

  • Federal contractors may limit the amount of paid sick leave employees are permitted to accrue to not less than 56 hours in each accrual year (see 48 C.F.R. § 22.2105(b)(1); 29 CFR 13.5(b)(1)).
  • Paid sick leave shall carry over from one accrual year to the next (see 48 C.F.R. § 22.2105(b)(2); 29 CFR 13.5(b)(2)).
  • Paid sick leave carried over from the previous accrual year shall not count toward any limit the contractor sets on annual accrual (see 48 C.F.R. § 22.2105(b)(2); 29 CFR 13.5(b)(2)).
  • Federal contractors may limit the amount of paid sick leave an employee is permitted to have available for use at any point to not less than 56 hours (see 48 C.F.R. § 22.2105(b)(3); 29 CFR 13.5(b)(3)).
  • Federal contractors are required to reinstate paid sick leave for employees only when rehired by the same contractor within 12 months after a job separation (see 48 C.F.R. § 22.2105(b)(4); 29 CFR 13.5(b)(4)).
  • Nothing in Executive Order 13706 (Establishing Paid Sick Leave for Federal Contractors) or the applicable DOL regulations (29 C.F.R. Part 13) requires contractors to make a financial payment to an employee for accrued paid sick leave that has not been used upon a separation from employment (48 C.F.R. § 22.2105(b)(5)).
  • If a federal contractor nonetheless makes such a payment in an amount equal to or greater than the value of the pay and benefits the employee would have received pursuant to the DOL’s regulations (29 C.F.R. § 13.5(c)(3)) had the employee used the paid sick leave, the contractor is relieved of the obligation to reinstate an employee’s accrued paid sick leave upon rehiring the employee within 12 months of the separation pursuant to the DOL’s regulations (29 C.F.R. § 13.5(b)(4)) (see also 48 C.F.R. § 22.2105(b)(5); 29 C.F.R. § 13.5(b)(5)).

Use of paid sick leave

  • Subject to certain conditions, a contractor must permit an employee to use paid sick leave to be absent from work during time the employee would have been performing work on or in connection with a covered contract or – if the contractor estimates the employee’s hours worked in connection with such contracts for purposes of accrual – during any work time because of, among other things, (i) a physical illness, injury, or medical condition of the employee; (ii) obtaining diagnosis, care, or preventive care from a healthcare provider by the employee; or (iii) caring for the employee’s child, parent, spouse, domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship who has any of these conditions or needs for diagnosis, care, or preventive care (29 C.F.R. § 13.5(c); 48 C.F.R. § 22.2105(c)).

Request for paid sick leave

  • Federal contractors are required to permit an employee to use any or all of the employee’s available paid sick leave upon the oral or written request of an employee that includes information sufficient to inform the contractor that the employee is seeking to be absent from work for a purpose described in the DOL’s regulations (29 C.F.R. § 13.5(c)) and, to the extent reasonably feasible, the anticipated duration of the leave (see 48 C.F.R. § 22.2105(d); 29 C.F.R. § 13.5(d)).

Certification or documentation for leave of three or more consecutive full workdays

  • Contractors may require certification issued by a healthcare provider to verify the need for paid sick leave used for a purpose described in the DOL’s regulations (29 C.F.R. § 13.5(c)(1)(i), (ii), or (iii)), or documentation from an appropriate individual or organization to verify the need for paid sick leave used for a purpose described in the DOL’s regulations (29 C.F.R. § 13.5(c)(1)(iv)), only if the employee is absent for three or more consecutive full workdays (see 48 C.F.R. § 22.2105(e); 29 C.F.R. §a 13.5(e)).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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