United States: If Pain, Yes Gain—Part XVIII: Vermont Becomes Fifth State To Enact Paid Sick Leave Law

Vermont finally hopped on the paid sick leave bandwagon when last week, Governor Peter Shumlin signed the Vermont Paid Sick Leave Law ("Vermont PSLL").  Vermont joins Connecticut, California, Massachusetts, and Oregon as the only states to pass a statewide paid sick leave law.1 The Vermont PSLL goes into effect on January 1, 2017 for employers with at least six employees, and January 1, 2018 for smaller employers. 

While the Vermont PSLL is certainly a win for employees, as illustrated below, it contains many employer-friendly attributes that should help ease the compliance burdens awaiting covered employers.

Which Employers Are Covered Under the Vermont Law?

The Vermont PSLL defines "employer" broadly to include any individual, organization or governmental body, partnership, association, corporation, legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air, or express company doing business in or operating within [Vermont]." 

Which Employees Are Covered by the Law?

On the other hand, the law defines "employees" more restrictively. To be covered under the Vermont PSLL, an employee must work for a company for an average of at least 18 hours per week during a given year.  The Vermont PSLL further contains various exclusions from the definition of "employee," which most notably include: (a) individuals employed by the federal government; (b) individuals employed by an employer for 20 weeks or fewer in a 12-month period where the job is scheduled to last 20 weeks or fewer; (c) individuals under the age of 18; and (d) persons that (i) work on per diem or intermittent basis, (ii) work only when the person indicates that he or she is available to work, (iii) who are under no obligation to work for the employer offering the work, and (iv) have no expectation of continuing employment with the employer.

How Much Sick Leave Must Covered Employers Provide?

Covered employees accrue one hour of earned sick time for every 52 hours worked.  This is one of the most management-friendly provisions of the Vermont PSLL as existing state and local paid sick leave laws generally have a much faster accrual rate. 

In addition to the pro-employer accrual rate, employers can calculate earned sick time either as it accrues, or "on a quarterly basis, provided that [the] employee may use earned sick time as he or she accrues it during each quarter."  Moreover, the Vermont PSLL imposes a reduced earned sick time accrual cap on employers from January 1, 2017 through December 31, 2018.  During this period employers must allow employees to accrue at least 24 hours of earned sick time in a 12-month period.  Thereafter, the cap increases to 40 hours in a 12-month period. 

To further decrease the burden on employers, the law carves out an interesting, and highly beneficial usage waiting period.  Under the Vermont PSLL, an employer can prohibit new hires from using earned sick time for up to one year following the start of their employment.  Similarly, an employer also may require employees employed on January 1, 2017 (or on January 1, 2018 for smaller employers) to wait a period of one year before they can use accrued earned sick time.2  In other words, employers with six or more employees have almost two years from today, and smaller employers have almost three years before their employees can use accrued earned sick time.

Do Employees Carryover Accrued, Unused Sick Leave at the End of the Year?

The Vermont PSLL seemingly provides no cap on carrying over accrued, unused sick time at year end.  However, the law does include some important restrictions.  First, if an employer cashes out an employee's unused earned sick time at the end of the year, the amount for which the employee was compensated does not carry over to the following year. Second, if the employer frontloads its employees a lump grant of 24 or 40 earned sick time hours (depending on the year), the employer need not comply with the law's carryover requirements.

Under What Circumstances May Employees Use Sick Leave?

Under the Vermont PSLL, an employee shall use accrued earned sick time "in the smallest time increments that the employer's payroll system uses to account for other absences or that the employer's paid time off policy permits." Employers may limit employees' use of earned sick time to increments that are no shorter than one hour.

An employee may use sick time earned under the Vermont PSLL for any of the following reasons:

  • The employee is ill or injured.
  • The employee obtains professional diagnostic, preventative, routine, or therapeutic healthcare.
  • The employee cares for a sick or injured parent, grandparent, spouse,3 child, brother, sister, parent-in-law, grandchild, or foster child, including helping that individual obtain diagnostic, preventive, routine, or therapeutic health treatment, or accompanying the employee's parent, grandparent, spouse, or parent-in-law to an appointment related to his or her long-term care.
  • The employee is arranging for social or legal services or obtaining medical care or counseling for the employee or for the employee's parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, who is a victim of domestic violence, sexual assault, or stalking or who is relocating as the result of domestic violence, sexual assault, or stalking.
  • The employee cares for a parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, because the school or business where that individual is normally located during the employee's workday is closed for public health or safety reasons.

What is the Rate of Pay for Sick Leave?

Under the Vermont PSLL, employers shall pay employees who use earned sick time the greater of either (a) the normal hourly wage rate of the employee, or (b) the Vermont state minimum wage.

What Notice Must Employees Provide When Using a Sick Day?

Employers may require employees to "make reasonable efforts" to avoid using earned sick time for foreseeable absences, such as routine or preventive health care appointments, during normal work hours.  Employers also can mandate that employees provide notice of their intention to use earned sick time "as soon as practicable," and that the notice include the anticipated length of the employee's absence.

Can Employers Require Employees to Provide a Medical or Other Certification?

Unlike many existing paid sick leave laws, the Vermont PSLL lacks a provision discussing when and under what circumstances an employer can require its employees to provide reasonable documentation, such as a doctor's note, confirming that earned sick time was used for a sanctioned purpose.  It is unclear whether Vermont will address this shortcoming in regulations or other administrative guidance released before the law's effective date.

What Notice Must Employers Provide?

The Vermont PSLL imposes both notice and posting obligations on covered employers.  In particular, employers must post notice of certain rights under the law in a conspicuous location in the employer's place of business.  Furthermore, employers must provide notice of the law's provisions to newly hired employees upon commencement of their employment.

What Can Employers Do and Not Do?

An employer cannot: (a) require an employee to find a replacement for covered sick time absences; (b) require an employee to use accrued earned sick time for a covered absence  if the employer and employee mutually agree that either (i) the employee will work an equivalent number of hours during the same pay period, or (ii) the employee will trade hours with a second employee;4 (c) diminish the employee's rights under the Vermont Parental and Family Leave Act if the employee uses earned sick time under the Vermont PSLL; and (d) discharge or in any other manner retaliate against an employee for exercising his or her rights under the Vermont PSLL or filing a complaint against the employer.

An employer can: (a) adopt a policy that requires employees to use accrued earned sick time for an absence from work due to a covered reason under the law; and (b) decline to provide employees with additional earned sick time if the employer provided the employee with paid time off for reasons protected under the Vermont PSLL and the employee chooses to use the time for a different purpose.

Must Unused Sick Leave Be Paid Upon Employment Separation?

Under the Vermont PSLL, employers are not obligated to cash out an employees accrued, unused earned sick time upon separation of employment.

Interestingly, employees who are discharged by their employer after completing the one year usage waiting period, and then subsequently rehired by the same employer within 12 months are treated more favorably than employees who resign.  A formerly discharged employee can begin to accrue earned sick time without going through another usage waiting period. However, and fortunate for employers, the employer has no duty to reinstate the rehired employee's accrued, unused earned sick time from before the discharge.  Whereas, employees who voluntarily separate from their employer after completing the one year usage waiting period, and who are subsequently rehired by their employer within 12 months after separation, must complete an additional one year waiting period before they can use accrued sick time.5  The law is silent on whether an employer in this situation must reinstate the employee's pre-separation accrued, unused sick time.

What Should Employers Do Now?

As discussed earlier, employers have a long time before their employees can use any paid sick time earned under the Vermont PSLL.  However, as the old adage goes "the bad news is time flies ... the good news is you're the pilot."  Vermont employers would be prudent to use the remainder of 2016 to confer with counsel and establish a compliant and efficient system for employees to use their earned sick time. These are among other actions to consider:

  • Review sick leave or PTO policies and procedures immediately to ensure that they meet at least the minimum requirements of the Vermont PSLL no later than the effective date for the respective employer.
  • Develop a new Vermont paid sick leave policy that complies with the Vermont PSLL for any employees who are not covered under the employer's existing paid sick leave or PTO policies.
  • Review and, as necessary, revise anti-retaliation, attendance, conduct, and discipline policies to prevent retaliation against employees for taking time off under the Vermont PSLL.
  • Prepare to comply with the law's notice and posting requirements.
  • Train supervisory and managerial employees, as well as HR, on the law's requirements.

Footnotes

1 Please see our earlier posts for more information on the Connecticut, California, Massachusetts, and Oregon paid sick leave laws.

2 During this initial usage waiting period, employees may accrue, but cannot use earned sick time.

3 Although not expressly stated in the Vermont PSLL, "spouse" likely will include domestic partners.

4 The Vermont PSLL allows that, if such an arrangement is made, the employer will not be required to pay the employee for the time that the employee was absent.

5 During this one year waiting period, these employees will be permitted to accrue sick time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Samuel Sverdlov
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions