The Ohio Healthy Families Act (“OHFA”) likely will appear on the ballot on November 4, 2008. To prepare for drastic changes proposed by the OHFA, each Ohio employer must answer the following questions before it can even begin to understand its obligations and potential liabilities under the OHFA. The vote on OHFA is coming, and if it passes on November 4, Ohio employers must be prepared to navigate the new employment landscape it will create.
1. Which employers are required to comply with the OHFA?
All private employers with 25 or more employees must comply with the OHFA. All public employers must comply with the OHFA including the State and all of its political subdivisions regardless of their number of employees. R.C. 4114.01(B).
2. Are part-time employees included in the calculation to determine if an employer is covered by the OHFA?
Yes. The definition of employee includes part-time employees. Therefore, if a private employer employs 20 full-time employees and five part-time employees, the OHFA likely would cover the employer. R.C. 4114.01(B).
3. Does the OHFA apply to temporary and leased employees?
Yes. The OHFA uses the definition of employees from the Fair Labor Standards Act (“FLSA”). Temporary employees and leased employees constitute employees under the FLSA.
4. How much PAID sick leave do employers have to provide their employees under the OHFA?
Employees who work 30 hours or more per week are entitled to at least seven PAID sick days per year. R.C. 4114.02(A)(1). Employees who work less than 30 hours per week (or less than 1,560 hours per year) are entitled to at least a pro rata amount of PAID sick leave. For example, an employee who regularly works 15 hours per week is entitled to at least 3.5 days of sick leave per year. R.C. 4112.02(A)(2).
5. How should an employer calculate the amount of leave an employee accumulates when the employee’s schedule and work hours vary?
For employees whose weekly schedule varies
(e.g., temporary employees, seasonal employees, etc.), the OHFA requires
employers to use the weekly average of hours worked over the preceding
12 weeks to determine the minimum amount of sick leave to which the
employee is entitled. R.C. 4114.02(E).
6. How frequently must an employer provide new sick leave?
Sick leave must accrue at least monthly. R.C. 4114.02(B).
7. Does sick leave carry over from year to year?
Yes. The OHFA requires employers to carry over accumulated sick leave from year to year. R.C. 4114.02(C). However, the OHFA provides that employers are not required to permit an employee to “accumulate” more than seven sick days “per year.” R.C. 4114.02(C). It is unclear whether the OHFA entitles employees to use more than seven sick days per year. OHFA proponents contend that the OHFA does not require employers to permit employees to bank accumulated sick leave indefinitely. Rather, they contend that employees are entitled to carry over up to seven days of sick leave from year to year, but employers are not required to allow employees to accumulate more than seven accumulated but unused days of sick leave at any one time. Importantly, under Ohio’s rules of statutory interpretation, the OHFA proponents’ interpretations will not bind the courts.
To illustrate the issues raised by OHFA’s carry over provision, consider an employer having a 30-hour per week employee whose sick day accumulation commences on January 1, 2009. The employer has a policy which states that employees accumulate sick leave on the first day of every month. The employee will accumulate seven sick days through December 1, 2009. If this employee uses no sick leave in 2009, under the OHFA, all seven sick days will carry over to 2010 and be available for use. This employee likely will not accumulate any sick leave days on January 1, 2010, because employees cannot accumulate more than seven sick days within any consecutive 12 months. If between January 20-27, 2010, the employee uses all seven sick days, he or she will have no “accumulated” sick days. However, because sick days accumulate at least monthly, and under the employer’s policy on the first day of each month, the employee will accumulate .5834 sick days for use on February, 1, 2010. The employee could use sick days as the sick days accumulate. If that same employee did not use any sick leave through December, 2010, on December, 2, 2010, the employee would have accumulated 6.4174 sick days all of which he or she could use in December 2010. The chart below illustrates this example:
2010 (Month)
|
Jan.
|
Feb.
|
Mar.
|
Apr.
|
May
|
Jun.
|
Jul.
|
Aug.
|
Sep.
|
Oct.
|
Nov.
|
Dec.
|
Sick Days
Carried Over From 2009 |
7
|
|||||||||||
Sick Days
Earned During Month |
0
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
.5834
|
Sick Days
Used During Month |
7
|
|||||||||||
Accumulated
Sick Days at end of Month |
0
|
.5834
|
1.1668
|
1.7502
|
2.3336
|
2.917
|
3.5004
|
4.0838
|
4.6672
|
5.2506
|
5.834
|
6.4174
|
8. Can employees take leave in increments of leave smaller than a full day?
Yes. Employees may receive sick leave that is less than a normal workday. If employees are entitled to receive leave in an increment less than a normal workday, the leave is counted on an hourly basis, or in the smallest increment that the employer’s payroll system uses to track other absences or leaves, whichever is smaller. For example, if the employer tracks Family Medical Leave Act (“FMLA”) leave time in one-hour increments, then the employer must award and track sick leave in one-hour increments. R.C. 4114.02(D).
9. For what purposes may sick leave be used?
Under the OHFA, sick leave may be used for three purposes: (1) Employees may take sick leave for an absence resulting from his or her own physical or mental illness, injury, or medical condition. R.C. 4114.03(A)(1). (2) Employees may take sick leave for an absence resulting from his or her own obtaining professional medical diagnosis or care, or preventive medical care. R.C. 4114.03(A)(2). (3) Employees may take sick leave for an absence for the purpose of caring for a child, parent, or spouse who has any of the conditions, or needs diagnosis or care, as described in paragraphs (1) or (2). R.C. 4114.03(A)(3).
10. Are employers required to permit employees to use sick leave for elective surgery?
Unclear. Under the FMLA, employers are not required to provide FMLA leave to employees who undergo elective surgery. However, the OHFA does not state whether employers are required to provide sick leave to employees who undergo elective surgery. Elective surgeries may constitute a medical condition under the OHFA which would require employers to provide sick leave to employees who undergo elective surgeries. R.C. 4114.03(A)(1)-(3).
11. Are employees required to mention the “Ohio Healthy Families Act” when requesting sick leave?
No. When requesting sick leave, employees must state only (1) the reason for his or her absence; and, (2) the expected duration of his or her absence. R.C. 4114.03(C).
12. How much advance notice does an employee have to give to use sick leave?
Generally, employees should notify employers as soon as possible. If the employee knows at least seven days in advance of the need to use sick leave, then the OHFA requires employees to ask for sick leave at least seven days in advance. If the employee does not know of the need to use sick leave more than seven days in advance, then the OHFA requires employees to inform the employer as soon as possible. R.C. 4114.03(C).
13. Can an employer require an employee to provide a doctor’s note supporting the employee’s need for sick leave?
Only in limited circumstances. An employer can require an employee to provide a certification supporting the need for leave from a health care professional only if the duration of the leave is more than three consecutive work days. If the duration of the sick leave is three consecutive work days or less, then the employer may not require that the employee provide a doctor’s note. R.C. 4114.04(A).
14. If an employer requests a doctor’s note, when must the employee provide it?
Employees have up to 30 days from the first day of leave to provide the doctor’s note. R.C. 4114.04(B). This provision may limit an employer’s ability to require employees to return FMLA certifications within 15 days from the employer’s request.
15. How does the OHFA affect employers with collective bargaining agreements?
The OHFA has substantial ramifications for both private sector and public sector employers subject to collective bargaining agreements (“CBA”). The issues affected include: call-off procedures, certification procedures, independent medical examination procedures, return-to-work certifications, sick leave incentive provisions, employee evaluations, and employee disciplinary actions. Pursuant to R.C. 4117.10(A), it is likely that Ohio’s Public Employee Collective Bargaining Act (R.C. 4117.01 et seq.) supersedes the OHFA. However, under Ohio law, if a public employee CBA is silent regarding a right or entitlement created by the OHFA, it is possible that the OHFA’s terms will apply to covered public employees. Employers should review their specific CBA’s to make definitive determinations as to these issues.
16. May employers count sick leave against a no-fault attendance policy?
No. The OHFA prohibits employers from
using paid sick leave as a negative factor or counting paid sick leave
under a no-fault attendance policy. R.C. 4141.10(C)(2)-(3).
17. May employers count sick leave against an employee attendance bonus program?
Probably not. The OHFA prohibits employers from using paid sick leave as a negative factor. Counting paid sick leave absences against an employee attendance bonus program is similar to counting paid sick leave against a no-fault attendance policy. Therefore, an employer would likely violate this provision by counting a paid sick leave absence against an employee for purposes of an employee attendance bonus program.
18. Are employers required to pay out remaining sick leave at the end of an employee’s employment?
Not unless the employer’s policy requires it. The OHFA does not require that employees receive compensation for remaining sick leave when their employment ends. However, employers who elect not to pay out accumulated but unused sick leave should have a written policy which expressly states that the employer will not pay unused sick leave at the end of employment.
19. If the OHFA passes, when does it become effective?
If the OHFA passes, the majority of the provisions will become effective on December 4, 2008. See Ohio Constitution, Article II, Section 1b.
However, the OHFA suggests that one component of the OHFA may operate retroactively to the date of enactment, which would occur on November 4, 2008 (presuming that the OHFA passes). R.C. 4114.07(C). The OHFA specifically states that employers may not eliminate or reduce any type of leave in existence on the date of enactment. R.C. 4114.07(C). If the OHFA passes, the date of enactment will occur on November 4, 2008. Therefore, any employer who wishes to reduce the amount of any leave provided under its current policy should act before November 4, 2008.
20. Will a Paid Time Off (“PTO”) only leave policy violate the OHFA?
Probably. The OHFA states that employers are not required to modify a leave policy as long as the leave policy offers employees, at their discretion, the equivalent to the sick leave mandated in the OHFA. However, if an employee uses all of his or her PTO days for reasons unrelated to sick leave, it is unclear whether the employer must then provide an additional seven days specifically for sick leave. In addition, if the PTO leave accrues on an annual basis, rather than on a monthly basis, the failure to accumulate sick leave on a monthly basis also appears to violate the OHFA.
21. Should an employer update its employee handbook?
Yes, if the OHFA appears that it will pass. The OHFA and current leave of absence policies may affect other polices contained in the employer handbook, including: sick leave accumulation, sick leave use, call-off, attendance bonus, no-fault attendance, medical certification, independent medical examination, and FMLA leave policies (if applicable).
22. What does the OHFA prohibit employers from doing?
The OHFA prohibits employers from
interfering with, restraining or denying the exercise of or attempted
exercise of any rights established under the OHFA. Further, employers
cannot discharge or discriminate against any employee for opposing an
action that is made unlawful by the OHFA. R.C. 4114.10(B).
23. What damages are employees entitled to if an employer interferes with an employee’s rights under the OHFA?
Employees are entitled to any wages, salary or benefits denied as a result of the violation, or if no wages, salary or benefits were denied, other monetary losses suffered by the employee as a result of the violation. Employees are also entitled to interest on the amount awarded, treble damages based on the amount awarded, and reasonable attorneys’ fees. R.C. 4114.11.
24. How long do employees have to file a lawsuit for a violation of the OHFA?
Probably six years. Since the OHFA does not provide a statute of limitations or a limit on the time an employee may file a lawsuit, a default statute of limitations should determine the amount of time an employee has to file a lawsuit. Under Ohio law, the default statute of limitations for claims arising out of a violation of a statute is six years. R.C. 2305.07. [1]
25. As an employer, am I ready for the OHFA?
No. Not until you attend a free breakfast seminar provided by Zashin and Rich Co., L.P.A. on Thursday, September 18, 2008 from 9:00 a.m. to 12:00 p.m. Employers attending the seminar will gain knowledge on topics including, but not limited to:
- leave of absence mandates;
- which employees are entitled to leave;
- what employees have to do to receive leave;
- what information employers can request from employees;
- how employers can protect themselves from liability under the proposed law;
- what information employers have to provide employees;
- what records employers have to maintain;
- what can be done to manage the use of employee sick leave; and,
- whether and how employers should change their leave of absence policies.
[1] The answers to these 25 questions are based on information now available. The answers to these questions do not constitute legal advice and may change based on events that take place between now and the election on November 4, 2008 or the effective date of the OHFA. Further, the OHFA charges the Ohio Department of Commerce with implementing clarifying regulations regarding the OHFA. These regulations, if promulgated, may also impact and change the above answers.
*Stephen Zashin is an OSBA Certified Specialist in Labor and Employment Law and has extensive experience in both defending employers in leave of absence litigation and assisting employers with leave of absence compliance.
*Patrick Watts is an OSBA Certified Specialist in Labor and Employment Law with a focus on leave of absence litigation and compliance.
For more information about the OHFA or leave of absence policies, please contact Stephen Zashin (ssz@zrlaw.com) at 216.696.4441.