U.S. Department of
Labor Issues Proposed Rule on Mandatory Paid Sick Leave for Federal Contractors
By Anne G. Bibeau, Esq.
The U.S. Department of Labor (DOL) has published a Notice of
Proposed Rulemaking (NPRM) to implement President Obama’s Executive Order (EO)
13706, “Establishing Paid Sick Leave for Federal Contractors.” The EO requires
that for federal contracts issued on or after January 1, 2017, federal
contractors and subcontractors must provide their employees “not less than 1
hour of paid sick leave for every 30 hours worked on or in connection with
covered contracts,” up to 56 hours of paid sick leave per year. In the NPRM,
DOL describes the rules and restrictions regarding the accrual and use of paid
sick leave. The public is invited to submit comments on the NPRM to DOL by
March 28, 2016.
The EO’s paid sick leave requirement applies to work on or
in connection with “covered contracts,” meaning federal contracts and
subcontracts subject to the Davis-Bacon Act (DBA) and the Service Contract Act
(SCA), as well as federal contracts for concessions and for services on federal
property. Employers must provide the paid sick leave to both FLSA-exempt and
non-exempt employees. Recognizing that employers typically do not track hours exempt
employees’ hours worked, the NPRM provides that the employer may assume that
for purposes of calculating paid sick leave its exempt employees worked 40
hours on or in connection with a covered contract each week.
Significantly, the paid sick leave required by the EO is in
addition to the contractor’s obligations under the SCA and DBA. The contractor
will receive no credit toward its fringe benefit or prevailing wage obligations
under those laws for providing the paid sick leave mandated by this EO. A contractor’s
existing paid time off policy may satisfy the requirements of the EO only if
the paid time off meets all of the EO’s requirements for paid sick leave.
Under the NPRM, any unused paid sick leave must carry over
from one accrual year to the next. A contractor is permitted to, but not
required, to pay out used paid sick leave upon termination of employment;
however, if the contractor rehires the employee within 12 months, the
contractor must reinstate his or her accrued paid sick leave regardless of whether
it was paid out previously.
The employee is entitled to use the paid sick leave for:
their own illnesses and other health care needs; the care of a family member or
loved one who is ill or needs health care; purposes resulting from being the
victim of domestic violence, sexual assault, or stalking; or to assist a family
member or loved one who is such a victim. The NPRM broadly defines the relations
for whom an employee may use paid sick leave to include the employee’s child,
parent, spouse, domestic partner, or “any other individual related by blood or
affinity whose close association with the employee is the equivalent of a
family relationship.”
An employee who wants to use accrued paid sick leave should make
a request at least 7 calendar days in advance, if the need for leave is
foreseeable, or as soon as practicable if the need is not foreseeable. The
employer can require that the employee provide information to establish that
the absence qualifies for paid sick leave, and if feasible, the anticipated
duration of the leave. However, the employer may not require certification from
a health care provider or documentation to prove a claim of domestic violence,
sexual assault, or stalking unless the employee uses 3 or more full days of
leave consecutively.
The DOL will publish a notice that employers must post
notifying their employees of their rights to paid sick leave. In addition, the
NPRM requires that employers notify their employees of their accrued paid sick
leave balances at least once a month, as well as whenever the employee asks for
that information or asks to use paid sick leave and when the employment is
terminated.
Federal contractors should review their leave policies now
to minimize any conflicts with the EO’s requirements and to prepare for the
EO’s implementation in 2017.
