The flu season is hitting us hard this year. With it comes the complex question: “Do I tough it out at work or lose a day’s pay?” Forty million Americans do not have sick leave and they are more likely to choose the first alternative, infecting co-workers and even lengthening their recovery time. In fact, a 2011 study in the American Journal of Public Health estimated that a lack of sick time helped spread five million cases of flu-like illness during the 2009 swine flu outbreak.
The issue of paid sick leave is far from being settled or dealt with uniformly in this country. Connecticut, for example, passed its own paid sick leave law which became effective January 1, 2012. New York City is still debating paid sick leave and the controversy rages hot and heavy. Paid sick leave laws exist in San Francisco, Seattle and Washington, D.C. In Milwaukee and Philadelphia, paid sick leave laws were passed but then vetoed.
Like so many other employment law issues, the debate pits employee welfare and public health issues against the burden of added costs to employers in a still-suspect economy.
Picture “Mary,” an employee at a Connecticut restaurant. She might be unable to work because of her bad back, or because her child has cancer and needs major surgery and follow-up care. Is she entitled to take leave? For how long? Is she entitled to be paid during her leave? Is she entitled to her job back when her leave ends? These are some of the very basic questions that arise in the area of leave law. Unfortunately, the answers are not always clear and simple.
Mary’s leave issues can be affected by a number of statutory provisions and common law concepts. This article provides a general outline of some of the laws that may apply, and discusses the interplay between what they do and do not cover.
•Connecticut Paid Sick Leave: Based on the theory that we wouldn’t want Mary serving our food, cleaning our teeth or taking our movie ticket, if she had the flu, Connecticut enacted its paid sick leave law. It provides non-exempt “service workers,” like Mary, with a maximum of 40 hours of paid sick leave in a calendar year. Mary’s employer would be covered by the law if it employed 50 or more individuals in any one quarter in the previous year. Mary would be eligible for the benefit only after working 680 hours for her employer and only after averaging 10 hours per week for her employer in the most recently completed calendar quarter, Subject to the maximum of 40 hours per year, Mary could carry over her unused, paid sick leave hours from one year to the next. In the absence of other issues, she could safely assume that she could return to her job on her return from her leave, since paid sick leave is, by definition, short term.
•Unpaid Leave: If Mary’s employer is covered under the Federal Family Medical Leave Act (FMLA), she would be entitled to 12 weeks per year of unpaid leave for the birth or placement of a child, or to deal with a serious health condition suffered by herself, her child, spouse or parent. Employers covered by this act have 50 or more employees who are employed for 20 weeks or more per year in a 75-mile radius. Mary would need to have worked for the restaurant for at least 1,250 hours in the last 12 months to qualify. Mary’s employer would be covered under Connecticut’s law if it had 75 employees. She would be entitled to 16 weeks unpaid leave over two years, and leave to care for her in-laws would be covered, in addition to her family members covered under the federal law. The federal and Connecticut FMLA laws differ somewhat as to Mary’s right to return to her original or to an equivalent position on her return from leave. Under federal law, Mary must be restored to her original job or to an equivalent job. Under Connecticut’s statute, Mary can only be required to an equivalent position if her original job is not available.
•Disability Leave: Mary might be entitled to indefinite leave as a reasonable accommodation under the Americans with Disabilities Act, or under the provisions of Connecticut’s Fair Employment Practices Act (CFEPA). The ADA covers employers with 15 or more employees. CFEPA applies to employers with three or more employees. In the absence of discrimination, Mary is only entitled to unpaid leave under these laws. When Mary’s need for leave ended, she generally would be entitled to return to her job unless her return would impose an undue hardship on the restaurant; the amount of leave Mary requested was unreasonable; or she was unable to perform the essential functions of her job.
•Pregnancy Leave: Under both Title VII of the Civil Rights Act of 1964 (covers employers with 15 or more employees) and CFEPA, if Mary becomes pregnant and is temporarily unable to perform her job, she would have to be treated the same as any other temporarily disabled employee. If the restaurant allowed such employees to take disability or unpaid leave, Mary would have the same right.
•Connecticut Workers’ Compensation: If Mary sustained an injury in the course of her employment or suffered from an occupational disease, she might be entitled to leave and statutorily determined compensation during the period of her incapacity under this law. The length of permissible leave would depend on the extent of Mary’s incapacity and her ability to perform her work. If Mary were unable to perform her duties over a long period, the restaurant would not be required to indefinitely save her job unless it had a policy or practice that said otherwise. This law applies to employers with even one employee.
•Other Statutes and Contractual Rights: There are other laws that may provide Mary with a right to leave, such as Connecticut’s Family Violence Leave Law. Beyond the statutory provisions, Mary’s leave rights might be found in her individual employment contract or in a collective bargaining agreement.
Interplay Between Laws
If Mary had a question about her right to be out of work she might well turn to an attorney. He or she would have to consider the interplay between these laws. As examples:
•Mary’s potential right to leave under the ADA or Connecticut’s Workers’ Compensation and Paid Sick Leave laws must be based on her own condition. By contrast, awarding leave under the FMLA laws can be based on Mary’s need to deal with her medical issues or those of her family members.
•If Mary’s medical problem was very serious, she might be entitled to indefinite leave under the ADA or CFEPA, even after exhausting her statutory leave under state or federal FMLA.
•Mary might be entitled to leave under the ADA or CFEPA prior to meeting the longevity requirements of FMLA, or Connecticut’s Paid Sick Leave law.
•Medical conditions that qualify Mary for relief under the ADA might not entitle her to relief under Connecticut’s Paid Sick Leave or FMLA. And vice versa.
•If Mary qualified for FMLA, she would have an absolute right to unpaid leave. On the other hand, if she relied on the ADA, her employer might be able to provide her with accommodations and avoid offering her leave.
•When Mary begins to recover, the issue of her duty to perform or her right to receive light duty work must be considered. An employer may be required to provide light duty under the ADA for a longer period than he or she would be required to under Connecticut’s workers’ compensation statute. Under workers’ comp, the restaurant’s obligation to provide light duty jobs ends when Mary’s medical treatment ends or when she reaches maximum medical improvement.
•As Mary recovers, she might be required to perform light duty or risk losing her workers’ comp benefits. But her right to continued FMLA leave would be subject to no such requirement, as long as she qualified under this statute.
Clearly, issues involving employee leave are complex and far from clear-cut. Attorneys representing either employers or employees in these matters need to be aware of the many statutory and contractual rights that may come into play. The subtle interplay between the rules often prevents easy, clear answers, and encourages clever arguments that should be made on behalf of employees that need to be out of work. •