Federal Contractor Paid Sick Leave

You may have seen the news headlines on Labor Day that the President signed an Executive Order requiring federal contractors and subcontractors to provide employees with paid sick leave benefits. Not surprisingly, the official press release and “spin” were distributed ahead of the actual Order.  But, with the actual Order now available, we see that the new requirement is similar in many respects to the paid sick leave mandated under California law.  Unfortunately for employers doing business with the federal government, there are some differences.  Because the Executive Order does not preempt California law, federal contractors and subcontractors will have to ensure that their paid sick leave policies comply with both laws. Here is how the new federal requirement is similar to California law:

• The sick leave benefits apply to all employees.
• Employees must earn not less than 1 hour of sick leave for every 30 hours worked.
• The sick leave may be used for physical or mental illnesses, preventive care, caring for family members or time off for victims of domestic violence, sexual assault or stalking.
• Unused leave must be carried over from year to year.
• Unused leave need not be paid out at termination. However, employees rehired within one year must have any unused leave that was on the books at termination reinstated upon rehire.
• Employers cannot make the benefits contingent upon employees finding replacement workers.
• Employees may request the paid sick leave orally or in writing.
• Employers may not discriminate or retaliate against employees who request and use the paid sick leave or interfere with the employees’ rights to request or use the sick leave.

Here is how the new federal requirement is different than California law:

• Employers cannot set a limit on the total accrual of sick leave that is less than 56 hours. Under California law, it could be as low as 24 hours.
• Employees do not have to be employed for any specific period of time to be eligible for the benefits.
• Employers are not expressly permitted to have any use restrictions. Under California law, employers can place three types of use restrictions.
• The definition of those who an employee can take time off to care for is broader under the federal law—“any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”
• Employees requesting time off must include the expected duration of the leave and make the request at least 7 calendar days before taking the time when the need for leave is foreseeable.
• Employers may require certification from a health care provider for absences of 3 days or more.
• The paid sick leave required under the new law must be provided in addition to any paid sick leave benefits required under federal prevailing wage law. In other words, the paid sick leave provided does not count toward fulfilling the sick leave requirements under prevailing wage law.