A mandatory concern Featured

8:00pm EDT July 26, 2008

Just about any employer can see the value of sick days. Besides helping your employees get healthy, they keepsick employees away from everyone else on your staff, ensuring that the illness doesn’t spread. But, sick days are sometimes abused or misused, and an employer always has to be conscious of the bottom line, which begs the question: How many sick days should employees get, and which employees should get them?

A current piece of legislature being kicked around Ohio is the Healthy Families Act, which would require employers of 25 or more people to allow full-time employees to earn seven mandatory paid sick days a year. Part-time employees would also be protected on a prorated basis. Employees and their spouses, children and parents (including in-laws) could use these sick days to recuperate from injuries or illnesses, obtain preventive care, or get medical treatments.

The Ohioans for Healthy Families, a statewide coalition of citizens and organizations, is strongly behind the act, and they’re currently gathering support in an effort to get the proposal on the November ballot. On the other hand, many employers — the ones who are aware of the act, anyway — are wary of handing out a full week of sick days, particularly for nonfull-time employees.

“Several business groups are rallying together to defeat this act, but many business owners don’t even know this is going on,” says Leah Pappas, an attorney in the government relations practice group at Calfee, Halter & Griswold LLP. “It’s not that companies want to deny employees sick time, but seven full days for all employees — part-time, full-time, half-time, whatever — can get to be very expensive.”

Pappas adds that the problem is twofold. With large companies, the bigger the staff, the bigger the expense. With smaller companies, many of them only or mostly hire part-time employees specifically because they can’t afford to pay for sick time. Thus, all businesses are afraid of what mandatory sick days could mean to the bottom line and, in some cases, the companies’ future.

Smart Business spoke with Pappas and W. Eric Baisden, a partner in the labor and employment group at Calfee, Halter & Griswold LLP, about the Healthy Families Act, what it will mean to your business if passed and what employers can do about it.

What are the main things business owners need to know about the proposed Healthy Families Act?

As written, the act allows employees to begin accruing the paid sick leave immediately upon hire and to use it after 90 days of employment. Leave could be taken in the smallest increments possible. And, unless foreseeable, an employer only needs to provide oral or written notice of need for this leave ‘as soon as practicable.’ Employers may not penalize employees for utilizing their paid sick leave. Supporting medical documentation could only be required if the leave exceeds three days. Employees may not be penalized for availing themselves of this entitlement. Thus, an employee could arrive for work several hours late and simply indicate that he or she was sick. The employee must be provided paid leave without suffering any adverse consequences. This is just one example of what could cause employers concern above and beyond the cost they may face in being required to provide seven paid sick days.

If the Healthy Families Act is passed, how will Ohio businesses be affected?

Ohio would be the first state to adopt such a leave law. Ohio is currently struggling to remain competitive and to attract new industry. Adding additional financial burdens, which on the surface seem attractive, only makes it harder for Ohio to remain competitive and to bring new jobs to the state. Businesses will be required to adopt the leave provided for by the act possibly even in addition to existing leave policies available to employees. This will be especially difficult for start-up businesses with very little room to absorb additional costs.

Can an employer see any benefits from the Healthy Families Act?

The purported purpose of the proposal is an attractive one. However, most responsible employers currently offer a variety of leave to employees, which provides flexibility and recognizes legitimate reasons to be away from work. Horror stories of employees being terminated for legitimate absences are typically overblown and based on an incomplete story. Employers do not want to lose productive employees and most are empathetic to personal and family emergencies.

What should business owners do now, before the Healthy Families Act is passed?

Business owners need to review their current leave policies since they will not be able to make any changes after the effective date of the act. Business owners should consult with their employment counsel to determine whether any modifications to sick leave and time-off policies are necessary. Additionally, business owners should consider getting the message out to their employees why the act would cause hardships for the company. Business owners should also consider becoming active in groups working to defeat this measure. <<

LEAH PAPPAS is an attorney in the government relations practice group at Calfee, Halter & Griswold LLP. Reach her at (614) 621-7007 or LPappas@Calfee.com. W. ERIC BAISDEN is a partner in the labor and employment group at Calfee, Halter & Griswold LLP. Reach him at (614) 621-7752 or EBaisden@Calfee.com.

W. Eric Baisden
Partner, labor and employment group
Calfee, Halter & Griswold LLP