Guest Blogger: Healthy Families Act Legislation Becoming a Hot Topic
Because my employment law trial starts this week in state court, I've arranged for a series of (what I think are) great guest bloggers to talk about what's new and noteworthy in employment law. It's a nice opportunity for readers of the blog to hear a different perspective while at the same time, keeping all of you updated on interesting developments. Regular blog posting will resume in 2-3 weeks when my trial concludes.
As I will say time and again, I'm extremely thankful to all the guest bloggers for contributing and I strongly encourage you to visit and explore their blogs.
In the meantime, the guest blogger for the day is Jon Hyman, the prolific writer of the Ohio Employer's Law Blog. Jon is an attorney at Kohrman, Jackson and Krantz where he does employment law, but also works on various litigation matters as well. Jon advises individuals and companies on a wide-range of employment, human relations, and litigation issues. This role frequently requires Jon’s service as an author and speaker on myriad employment-related issues. If you haven't checked out his blog, you're missing out on some valuable updates. 
Today, Jon introduces us to the Healthy Families Act legislation that has been introduced in Ohio and elsewhere around the county....
Legislatures around the country are beginning to seriously consider paid sick leave laws. Just recently, the D.C. legislature passed such a law, and Ohio will most likely have its law on the ballot in November for voters to decide.Not to be outdone, Congress is also considering such a law, the Healthy Families Act. The HFA will grant all employees working for companies with 15 or more employees 7 paid days off per year for (1) their own physical or mental illness, injury or medical condition, (2) their own professional medical diagnosis or care, or preventive medical care, and (3) the same for an employee's child, parent, or spouse. Employees who work less than 30 hours per week or 1,500 total hours per year will receive a pro rated amount of paid time off.
Employers would have discretion to determine how employees accrue this paid leave, as long as it is at least quarterly. Employers cannot prohibit the carry over of 7 or less days per year.
The HFA will also allow for certification by a health care professional when an employee is out for more than 3 consecutive work days, an anti-retaliation provision, and a private right of action for aggrieved employees.
It also will forbid employers from counting the use of paid sick leave under a no-fault attendance policy. It is unclear if this prohibition applies only to paid leave under this statute, or any paid leave granted by an employer.
Section 11(a) of the HFA is what I believe to be the saving grace for most employers, and why I think the HFA will not result in monumental practical changes for the vast majority of companies that already provide paid time off if it passes.
That section provides: "Nothing in this Act shall be construed to diminish the obligation of an employer to comply with any contract, collective bargaining agreement, or any employment benefit program or plan that provides greater paid sick leave rights to employees or individuals than the rights established under this Act."
As I read that section, if a company has a leave policy that already provides for at least 7 paid sick days, it will not have to grant any additional paid leave.
The limited practical effect of this legislation notwithstanding, the cons of the HFA far outweigh its pros.
First and foremost, that last thing that businesses want is another statute under which employees will be able to sue, especially when it provides for double damages and attorneys fees.
Also take a look at Section 7(a)(1)(B):
It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this Act, including ... using the taking of sick leave under this Act as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action."Negative factor" is far too lenient of a standard, and very will could hamstring employers from taking legitimate action against any employee who is out for even a day with an illness.
Congress and state legislatures around the country should take a long, hard look at these serious deficiencies in the HFA, and should not merely knee-jerk vote in its favor because paid time off is viewed by most employees (and most of us are employees) as a "good thing."
If this statute becomes law in its current form, it will take a herculean effort by the Department of Labor to draft clear and comprehensive rules and regulations that make this law workable for businesses, instead of leaving myriad unanswered questions for the courts to sort out at the expense of those companies who will have to defend their individual interpretations.
