This month we’ve had numerous emails from Employers and employees about “sick time” – So we’re going to help you understand what it is and what it isn’t!
What is “Sick Time”?
By now, you’re probably sick of hearing the term “sick time”—but what does sick time actually refer to, and why should it matter to you?
It might surprise you to know that there are no federal laws requiring or protecting paid sick time. That’s right, there are no federal laws that guarantee pay if an employee, or a close member of the employee’s family gets an illness and needs to take a sick day. However, many states do have a sick time law, including Oregon and California. Depending on your location, all employers in both Oregon and California must allow employees to earn and use up to a certain number of protected time hours each year. In Oregon, all employers must provide up to 40 hours of unpaid protected sick time per year. Employers that employ at least 10 employees or more in Oregon (six if the employer has operations in Portland) must provide that protected sick time with pay. California has one of the more comprehensive paid sick time laws in the US. It mandates that full time employees be provide 24 hours of sick time per year. An employee may not be disciplined or terminated for taking protected sick time.
Sick Time vs. Medical Leave [FMLA/OFLA/CFRA]
In general, sick time refers to the time an employee takes off from work to stay home to address either their own health or the health of close family member. Typically it can be for an illness, an injury, or preventative reasons like a dental appointment or wellness check-up. It is different from medical leave, as outlined by the federal Family and Medical Leave Act (FMLA), which is a federal law providing eligible employees with up to 12 weeks of unpaid leave to attend to a serious illness or injury with themselves or a family member. Many states have similar family medical leave laws that are equal or more generous for eligible employees such as the California Family Rights Act (CFRA) and the Oregon Family Leave Act (OFLA). State and federal leave laws are intricate and complex. Keep in mind that there are other federal and state labor laws, such as anti-discrimination laws like the Americans with Disability Act (ADA) and the Pregnancy Discrimination Act (PDA), which may also impact how an employer assesses or grants sick time or medical leave.
Paid Time Off [PTO] vs. Sick Time
A paid sick time policy is a standalone policy that offers time off for illness and certain other limited situations. A PTO policy bundles various types of leave, such as vacation, sick, and personal leave, into a single bank that employees can use for any purpose. Under many of the paid sick leave laws, if you have a PTO policy, you generally don’t have to provide additional paid sick days to employees if the policy allows employees to use the same amount of leave for the same purposes and under the same conditions as required by the sick leave law and satisfies the accrual, carry over, and use requirements of the sick leave law. Check your applicable law to ensure compliance.
Should I have my Sick time or PTO policy “in writing”?
Having a clearly written policy in place is of the utmost importance now that the many states and jurisdictions have mandated Sick Time laws in effect. Determining an employee’s status can be complex and often needs documenting. Also, implementing a written policy helps your employees manage their time off, clearly communicates what they can/cannot use Sick Time/PTO for, how it accrues, and the other requirements of your plan. Cardinal can help. Not only can we can set up accrual and usage tracking but we also offer HR consulting. Contact Cardinal to see how we can assist you in determining whether to have a PTO policy or a separate sick time policy and to evaluate the laws that apply to your employees to help identify your specific business needs.
Here’s a simple chart that will clarify how to characterize certain circumstances…
Oregon vs. California vs. Federal Sick Time Rules
|Federal Law||California Law||Oregon Law|
|Paid Leave||None required||24 hours (three days) paid sick leave per year for full-time employees||40 hours (five days) paid sick leave per year for full-time employees|
|Eligibility||None specified||Full-time and part-time employees who work more than 30 days in the state are eligible to use their accrued sick leave after 90 days||Full and part-time employees are eligible to use their accrued sick leave after 90 days|
|Pay Rate||No requirements||Regular rate of pay for prior pay period or can average pay rate more than 90 days if pay rate varies, paid by commission, or piece||Regular rate of pay for prior pay period or average pay rate if paid by commission or piece (but no lower than minimum wage)|
|Accrual Calculation||No requirements||One hour of paid sick time for every 30 hours worked or 24 hours per year for full-time employees||1 hour for every 30 worked or 1.33 hours for every 40 worked.|
|Usage||Recommends that sick leave not be required to be taken in less than half-day increments by exempt staff||Employer can require employees to use sick leave in no less than two-hour increments||Employer must allow employees to use in increments as low as one hour|
|Carryover Rules||None required||Up to 48 hours allowed for carry over to the following year (24 hours per year for two years)||Up to 40 hours allowed for carryover to the following year and employer can cap at 80 hours|
|Posting||FMLA requires employers of 50 or more to post leave policy (that may include sick leave)||All employers must post their paid sick leave policy||Posting recommended but not required|
|Notice||Policy can be provided in employee handbook||Policy must be provided upon hire||Policy must be available to employee|
|Waiting Period||None required||30-day waiting period before accruals begin and 90-day waiting period before usage||No waiting period before accruals begin but 90-day waiting period before usage|
|Rehires||No requirement for sick leave balances to be reinstated upon rehire||Rehires within one calendar year are to be reinstated with prior sick leave accruals intact||Rehires within 180 days are to be reinstated with prior sick leave accruals intact (if they worked at least 90 days)|
|Terminations||No, unless employer offers to pay out unused sick leave balance upon termination||Unused sick leave does not need to be paid out upon termination (unlike accrued PTO)||Unused sick leave does not need to be paid out upon termination|