On Labor Day, President Obama issued an Executive Order requiring federal contractors to provide paid sick leave for their employees. The Order, entitled “Establishing Paid Sick Leave for Federal Contractors,” arrives on the heels of a similar Massachusetts law that, as of July 1, provides all Massachusetts employees the opportunity to earn up to 40 hours of paid sick time per calendar year. According to the White House, the Order will provide “approximately 300,000 people working on federal contracts the new ability to earn up to seven days of paid sick leave each year.” Opponents have already begun to voice concerns, particularly about President Obama’s use of executive power and exercise of executive orders, despite the fact that covered workers stand to gain a protection that approximately 61% of private employees receive.
Expanding Sick Leave for Federal Contract Workers – Provisions
Effective January 1, 2017, federal contractors and subcontractors must allow their employees to accrue at least one hour of paid sick time for every thirty hours worked. Employees are permitted to accrue a total of fifty-six hours, or seven work days, per year. Employees can use their paid sick leave to care of themselves or a family member as well as for absences resulting from domestic violence, sexual assault, or stalking. Employees may carryover all of their unused, accrued sick time from year to year.
Paid sick leave requests must be made at least seven calendar days in advance where the need for leave is foreseeable. Otherwise, leave must be requested as soon as practicable. Covered employees are expected to provide their employer with the expected duration of their leave, and if an employee is absent for three or more consecutive days, the employer may request a certification form from a health care provider (when absences relate to a medical condition) or “an appropriate individual or organization” (when absences relate to all other applicable categories).
Justification and Policy Concerns
While discussing the Order in a recent visit to Boston, President Obama remarked, “I believe that working Americans should have the basic security of paid leave. Right now, we are the only advanced nation on Earth that does not guarantee paid maternity leave. Think about that.” The President’s stated focus, to “expand access to paid leave” is to mirror the practice of “model employers” and proactive states like Massachusetts. A prime goal of the Order is to help American families who are unable to take the time needed to recover from an illness without pay; in other words, to help prevent the “gut-wrenching choice between a paycheck and a sick kid at home.” A secondary goal is to help stem the tide of workplace illnesses spread by employees who should be out sick.
The Order follows a number of other Executive Orders involving federal contractors. For example, Order 13658 raised the minimum wage paid to employees of federal contractors to $10.10.
Considerations for Federal Contractors
While the Order itself is straightforward generally, federal contractors nonetheless must keep in mind several finer points:
- As with any employment decision, covered employers are prohibited from retaliating against any employee for using, or attempting to use, accrued paid sick time.
- Earned sick time appears to be in addition to the other benefits that employees of federal contractors receive, such as the vacation and wage benefits available under the Davis-Bacon Act and the Service Contract Act.
- Many contractors may not experience any impact from the Order because their paid sick leave policies will not require many revisions to become compliant. However, contractors with smaller workforces (or those that do not employ unionized labor) will have to pay particular attention to ensure compliance.
- Although the Order appears to cover federal contractors’ employees, rather than independent contractors, employers should nonetheless ensure that their workers are properly classified under both Massachusetts and federal law to ensure that their sick-leave policies do not fall out of compliance based on worker misclassification.
For further guidance on any of these topics, or to set up an appointment to discuss the needs of your business, please contact the author or any of the other experienced employment attorneys at Conn Kavanaugh.