The Department of Labor issued its final rule establishing paid sick leave for most federal contractors. The rule applies to contracts awarded or solicited on or after January 1, 2017. Here is what you should know:
- The new sick and safe leave requirement applies only to four categories of contracts: (1) contracts that directly procure construction services and are covered by the Davis-Bacon Act (DBA); (2) procurement and non-procurement contracts subject to the McNamara-O’Hara Service Contract Act (SCA); (3) concessions contracts under which the federal government grants the right to use federal property for providing services, regardless of whether or not the services directly benefit the government, its personnel, or the general public; and (4) contracts in connection with federal property and offering services to federal employees, their dependents, and the general public.
- Workers (the law applies to employees as well as independent contractors who are covered by the SCA or the DBA) must accrue at least 1 hour of paid sick leave for every 30 hours they work, for a total of 56 hours each year, or get a grant of 56 hours each year.
- This sick and safe leave is in addition to any SCA sick leave obligations. It is anticipated that local area wage determinations will be adjusted for contracts awarded/solicited after January 2017.
- Workers must be permitted to carry over unused leave. The rule does permit caps on accrual and on banked leave, but the cap rules are complicated and should be implemented with caution.
- Contractors may estimate the time a worker works in connection with a covered contract, so long as the estimate is based on verifiable information and is reasonable.
- Workers should be notified at either the end of each pay period or month (whichever is the shorter interval), in writing, of the amount of paid sick leave they have accrued.
- If a worker is rehired by the same contractor within 12 months after a job separation, the contractor must reinstate the worker’s accrued, unused paid sick leave. There is, however, no requirement to pay those workers for accrued, unused leave upon separation. If the contractor provides a “cash-out” option upon separation there is no requirement to also reinstate the unused leave.
- Requests to use paid sick leave can be made orally or in writing and must be made at least 7 days prior for instances where leave is foreseeable. Denials of a leave request must be in writing and include an explanation of the denial. Denials cannot be based on whether a replacement worker has been found or on the contractor’s operational needs.
- Contractors may only require documentation for absences of 3 or more consecutive full days. There are also other limited situations where certification and documentation may be required.
- The leave can be used for the following: (1) their own illness, injury, or health-related needs; (2) to assist a family member who is sick, injured, or has other health-related needs; (3) reasons involving domestic violence, stalking, or sexual assault.
- If a collective bargaining agreement (CBA) ratified before September 30, 2016 provides a worker with at least 56 hours of paid sick leave each year, the final rule requirements do not apply until the agreement terminates or January 1, 2020, whichever is first. If the CBA does not provide 56 hours of paid sick leave, the contractor should provide notice and an opportunity to bargain with the union over any proposed changes to the existing sick leave policy, but should generally propose making changes that would provide employees with the difference equal to 56 hours in accordance with the final rule.
- Contractors must provide workers with notice of the paid sick leave requirements under this rule by displaying the model notice provided by the Department of Labor in a prominent and accessible place at the worksite. A copy of the notice can be found here.
Employers should keep in mind that they also need to comply with applicable local sick and safe leave laws (e.g. D.C. and Montgomery County). Now is a great time to ensure that your sick leave policies – and your entire handbook – are compliant with current local, state and federal law.
Reminder: Montgomery County Sick and Safe Leave Notice Has Been Issued
Montgomery County’s new sick and safe leave law requires that employers provide employees with notice of the law. Employers can meet this requirement by displaying the model notice or another notice containing the same information in a conspicuous and accessible area at each of the employer’s work locations in the County; by including the model notice or another notice containing the same information in an employee handbook or other written guidance distributed to all employees; or by distributing the model notice or another notice containing the same information to each employee when the employee is hired.
You can find a copy of the notice here.
Reminder: Post the Updated FLSA Poster in Your Workplace
DOL recently published a revised version of the Fair Labor Standards Act Minimum Wage Poster. This version includes information on child labor prohibitions, providing a tip credit, providing lactation breaks for nursing mothers, and properly classifying workers. Additionally, there is a QR Code at the bottom of the poster designed to allow easier access to the information.
As a reminder, all covered employers must provide employees with general notice of the FLSA by displaying the poster in a conspicuous location “where employees and applicants for employment can see it.” This requirement must be met even if there are no eligible employees at a specific location.
You can find a copy of the new poster here.
The contents of this Alert are for informational purposes only, and do not constitute legal advice. If you have any questions about this Alert, please contact a member of the Shulman Rogers Employment and Labor Law Group or the Shulman Rogers attorney with whom you regularly work.
Meredith “Merry” Campbell
Gregory D. Grant
Joy C. Einstein
Stacey L. Schwaber