Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

During her remarks, First Lady Michelle Obama said that the Administration endorsed, among other legislative efforts, the Healthy Families Act (H.R. 2460, S. 1152), a bill introduced in both the House and Senate this legislative term that requires employers with 15 or more employees to provide paid sick leave. Under the provisions of this bill, an eligible employee would be able to earn one hour of paid sick time for every 30 hours worked up to a maximum of 56 hours (seven days) annually. This leave could be taken for one’s own or a family member’s illness, be used for preventative care or to address acts of domestic violence, stalking or sexual assault. An employee would start accruing sick leave from day one of employment, and would be able to take leave after 60 days. Sick leave would carry over from year to year, but could not exceed 56 hours unless otherwise sanctioned by the employer. 

President Obama concluded his remarks by saying that the participants plan to “continue this conversation in the coming months, holding forums and roundtables in communities across the country, so we can seek out more good ideas and best practices that we can adopt and promote.”

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Specifically, the bill incorporates provisions of the Family Leave Insurance Act (H.R. 1723), Family and Medical Leave Enhancement Act (H.R. 824), Domestic Violence Leave Act (H.R. 2515), and the Healthy Families Act (H.R. 2460), all introduced within the past six months.

Borrowing from the Family Leave Insurance Act, this bill would provide eligible employees with 12 weeks of paid leave for their own illness, to care for a sick family member (including domestic partner) or new child, place a child up for adoption or foster care, address a qualifying exigency arising from a family member’s call to active duty, or care for a relative who is a wounded veteran. The bill would create an employee- and employer-financed insurance fund to pay for this leave. This program would be administered through the Department of Labor, which would contract with states to administer the program.

The next section of the Balancing Act would entitle employees to take time off from work to participate in their children’s or grandchildren’s school or community organization activities, attend regular medical/dental appointments, or attend to the needs of an elderly relative, among other types of “family wellness” leave described in the previously-introduced the Family and Medical Leave Enhancement Act. Eligible employees would be entitled to take up to 4 hours of leave during any 30-day period, not to exceed 24 hours in any 12-month period. An employee may chose, or an employer may require, that the employee use any accrued paid leave first. 

Of perhaps greater significance, this portion of the bill would expand the FMLA’s coverage by applying its terms to employers with 25 or more employees within the prescribed radius, not 50 as is the current law.

Rep. Woolsey’s Domestic Violence Leave Act is also included in the current legislation. This portion of the bill would amend the FMLA by permitting leave to be taken to address acts of domestic violence, sexual assault and stalking. Leave could be taken on behalf of oneself or a family member (including domestic partner) to seek medical attention, legal assistance, and psychological counseling for, or recovery from, injuries related to domestic violence, sexual assault or stalking. The bill also authorizes leave to be taken to participate in safety planning or other related activities that occur during work hours. This section of the bill also amends the FMLA by extending coverage to same-sex spouses and domestic partners, including the children of domestic partners.

The next section incorporates provisions of the Healthy Families Act, a bill that requires employers with 15 or more employees to provide paid sick leave. Under the terms of this bill, an eligible employee would be able to earn one hour of paid sick time for every 30 hours worked up to a maximum of 56 hours (seven days) annually. This leave could be taken for one’s own or a family member’s illness, be used for preventative care or address acts of domestic violence, stalking or sexual assault. An employee would start accruing sick leave from day one of employment, and would be able to take leave after 60 days. Sick leave would carry over from year to year, but could not exceed 56 hours unless otherwise sanctioned by the employer.

The Balancing Act contains a number of child care expansion and improvement provisions, including one that orders the Secretary of Health and Human Services to establish a program to award grants to states to encourage the establishment and operation of employer operated child care programs. In addition, the bill would amend the Employee Retirement Income Security Act (ERISA) to allow certain part-time and temporary workers to qualify for some pension and health benefits. Also, the bill would create a pilot program to raise awareness about telework among employers and to encourage such employers to offer telework options.

This bill has been referred to the House Committees on Education and Labor, Oversight and Government Reform, Armed Services, Ways and Means, and House Administration.

Under the terms of this legislation, the comp time option would always be at the employee’s discretion. An employee who elects comp time would receive paid time off at a rate of one-and-one-half hours of compensatory time per hour of overtime pay earned. By way of example, an employee who works 48 hours per week would receive either 8 hours of pay at a rate of time-and-one-half or 12 hours of paid leave. This act would not change how overtime is calculated. Employees would be able to accrue up to 160 hours of comp time per year, and employers would be required to cash out any accrued, unused comp time at the end of the year.

The bill also mandates that employers and employees enter into written agreements regarding the option for comp time, and stipulates that where collective bargaining agreements (CBAs) are in place, the offer of comp time must be negotiated and included in the CBA.

This bill was introduced in May 2008, but died in committee. Given the makeup of the 111th Congress and President Obama’s stated intentions to improve workplace flexibility, this bill has a somewhat greater chance of progressing this time around.