It’s Catching: Is the Spread of Paid Sick Leave Laws Making Employers Ill?

by Foley & Lardner LLP

As winter has turned to spring, and flu season has turned to allergy season, have your employees been accruing government-mandated paid sick leave? They might be if they happen to work in New York City (NYC), Newark, or Connecticut or other localities where employers are increasingly being required to provide paid sick leave to employees.

In recent months, the city councils in NYC, Newark, and Jersey City, New Jersey, all have passed mandatory paid sick leave laws, following other jurisdictions that had previously done the same (e.g., Connecticut, Seattle, San Francisco, and Washington, DC). Generally, these laws require employers to give their workers paid time off to deal with their own illness or take care of a child or other close relative who is sick.

While these new paid leave laws are not identical from jurisdiction to jurisdiction, recent iterations generally share common core requirements. For example, in Newark and NYC, here are some key terms:

  • Employees who work at least 80 hours a year in the city are eligible.
  • Leave time is paid based on employer size (5 or more employees in NYC; 1 or more employees in Newark).
  • Employees accrue one (1) hour of leave time for every 30 hours worked, up to a maximum of 40 hours of leave time per year (although in Newark, for employers with less than 10 employees, the annual accrual of leave time is capped at 24 hours).
  • Up to 40 hours of accrued, unused leave time must be carried over from year to year, but employers may limit the use of leave time to no more than 40 hours annually and are not required to pay separating employees for any accrued, unused sick time.
  • A city-created written notice of rights must be given to new hires and current employees.
  • If an employee is absent for more than 3 days, the employer may require a doctor’s note to support the leave request (but not disclosure of any health information).
  • Retaliation is prohibited against employees who exercise their rights.
  • Remedies include restitution, penalties, and reinstatement (in instances of retaliation).
  • Employers do not have to provide additional leave if they already have a paid leave or PTO policy that provides at least the minimum required leave time and otherwise meets the terms and requirements of the law.

These mandates have raised a host of compliance questions for employers, especially for those that have adopted all-in-one PTO policies to cover all contingencies, including sickness and vacation, and operate in “use it, or lose it” states (such as New York and New Jersey), where year-to-year carryover, and payouts upon separation, of unused PTO are not required. Employers who intend to comply with these new laws by sticking with their more generous PTO programs must nevertheless attend to the carryover (and other) requirements of the new laws. In doing so, this could lead to situations where employees end up carrying larger amounts of accrued PTO, which, in turn, could lead to larger payouts of unused PTO at separation (whether made voluntarily by the employer as matter of policy or otherwise mandated by applicable wage law, such as in California).

PTO policies also are often applicable only to full-time employees. These new laws do not discriminate in this fashion, and part-time and temporary employees are eligible to accrue paid sick leave provided they meet the minimal threshold of 80 annual work hours (i.e., the equivalent of two weeks of full-time work). Consequently, to comply with the new laws, employers who have not previously given any PTO or sick time to part-time or temporary employees are now making them eligible under their current policies or creating separate, narrow sick leave policies for them under the new laws.

In recent years, employers began moving to unified PTO policies to simplify things in the face of ever expanding categories of leave. Given the associated complications under these new laws, many employers who have adopted such a PTO policy may find it easier simply to revert to separate vacation and sick time policies, while others will try as they can to mesh the policy with these new laws.

The new laws are confounding for employers in other ways, whether it is trying to convert an old policy that calculates leave in days into one based on hours (in accordance with the new laws), or to reconcile the new laws with other health-related leave laws. For example, when it comes to medical documentation, these new laws prohibit any inquiry into the nature of an employee’s illness and thus are in conflict with the Family and Medical Leave Act (FMLA) and other leave laws. Without a proper medical certification describing the nature of the subject illness, employers will be hard-pressed to designate an absence “due to sickness” as FMLA qualifying.

Only time and experience with these new laws will sort out these and other questions. In the meantime, with NYC and Newark taking the plunge, it looks like mandatory paid sick time for employees is ready to spread, with legislative activity reportedly ongoing at the state level in California, Massachusetts, Oregon, and Vermont, as well as at the local level, e.g., in Tacoma, Washington. Battle lines, however, have clearly been drawn by business interests who contend that such laws have a negative economic impact and drive employers to states and cities that are free of such regulation. At least 10 states – Wisconsin, Indiana, Florida, Georgia, Kansas, Louisiana, Mississippi, North Carolina, Tennessee, Florida – have all enacted laws barring localities from adopting paid leave legislation, and other states appear ready to join the fight.

As the battle wages on, stay tuned and be ready. For those employers already subject to paid leave laws, and their contradictions and ambiguities, be wary. The difficulties in trying to sync your current policies and practices with these laws require careful attention and might just drive you mad or make you sick. You may need not only a lawyer, but also a doctor.

View This Blog


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.

© Foley & Lardner LLP | Attorney Advertising

Written by:

Foley & Lardner LLP

Foley & Lardner LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.