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The 2009 Healthy Families Act:
Revisiting the Proposal for Mandatory Paid Time Off
If passed by Congress, the Healthy Families Act (HFA) will mandate that workers receive up to seven paid days off to stay home when they are sick, to care for family members, or to address domestic violence issues. Representative Rosa L. DeLauro (D-CT) re-introduced the 24-page legislation (H.R. 2460) on May 18, 2009, contending that employees would no longer have to choose between their own illness or their family’s health, and their jobs. Senator Edward M. Kennedy (D-MA) introduced a companion bill in the Senate (S. 1152) on May 21, 2009.   President Obama is a strong supporter of this legislation. The HFA would require every employer with more than 15 employees on their payroll to provide employees one hour of paid leave for every 30 hours worked, up to a maximum of 56 hours (7 days) every year. Employees could begin using accrued time off within 60 days after starting work. 
Although well-intended, the HFA would add to the already complex grid of state and federal paid and unpaid leave laws. It would also likely enhance the possibility for employee misuse of these benefits, without providing employers adequate tools for managing those concerns. At the very least, mandating paid time off would increase operating costs during an already challenging economic time. 
Key Provisions of the HFA

 1.    Employees could use paid time off to stay home and get well when they are ill; to care for a sick family member, including a child, parent, spouse, or “any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship,” which includes other children and adults for whom they are a caretaker.

2.   Employees would be able to use time off to obtain medical care, including preventive care, for themselves and others.

3.   Employees could take time off for absences related to domestic violence, sexual assault or stalking, including time spent seeking medical attention, obtaining counseling services, relocating, or pursuing legal action, for themselves and others.

4.   Employees would have to make a reasonable effort to schedule periods of time off “in a manner that does not unduly disrupt the operations of the employer.”

5.   Employers could only request appropriate certification for leaves of more than three consecutive days, which the employee would need to provide within 30 days of the first date of absence.

6.   The U.S. Department of Labor (DOL) would be responsible for enforcing this law and employees would have a private right of action to sue their employers. 

7.   If enacted, the law would take effect six months after the DOL issues its implementing regulations.

HFA and the FMLA
Although this legislation is intended to assist workers who are struggling to balance the demands of their jobs with the health needs of their families, it was introduced without any significant consideration or understanding of the other complicated and overlapping leave already provided by the federal Family and Medical Leave Act (FMLA) and state laws, such as the Wisconsin FMLA. For example, although the federal and state FMLA laws require employers who have 50 or more employees to provide job-protected unpaid leaves of absence, the HFA would apply to employers with only 15 or more employees. Further, unlike the FMLA, absences under the HFA do not have to be for a serious health condition as defined by the FMLA regulations, which expressly indicate that unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition. HFA leave could be used for any of these conditions or for absences related to domestic abuse, sexual violence and stalking, which are not covered by the FMLA. A primary concern is how to reconcile the differing accrual, use and certification standards, and the fact that one leave is paid while the other may not be. For example:

Ÿ Can employees, under the HFA, substitute paid leave under federal law like they can under state law, assuming the employee has a serious health condition? 

Ÿ If the absence is not for a serious health condition and, admittedly, the HFA offers broader protections than the FMLA, will the employee be given up to an additional seven days of protected absences in addition to those covered by the state and federal FMLA? 

Ÿ Because employers would not be permitted to delay HFA leave pending receipt of the employee’s certification, how will employers recapture any wages paid for periods of leave that are not timely certified? What impact might this have on salaried, exempt employees?

We will have to wait and see how these bills develop and, if passed into law, what regulations the DOL will establish for implementation and administration.
HFA, Cost-Management and the Marketplace
Most employers know that a satisfied employee is a more productive employee. To that end, employers typically make benefit-related decisions with an eye toward improving their partnership with their workforce as they compete for employees. The other eye, however, is almost always on the bottom line.   Because increased costs, implementation issues and reduced flexibility are concerns for employers, business groups have indicated their opposition to the HFA.   As these bills wind their way through congressional committees, watch for debate to ensue on key issues raised by this legislation, including:

Ÿ Are paid days off for illness and domestic violence more important than jobs? 

Ÿ Do these legislative changes really improve productivity and decrease presenteeism (when employees come to work sick and infect others) as suggested by the proponents of these changes? 

Ÿ What effect will providing this benefit have on employers’ costs? 

Ÿ Will this benefit create and retain jobs during a recession? 

Ÿ Would employers shed jobs, or reduce wages or other benefits to pay for these leaves? 

This legislation is likely to have considerable traction because of the President’s encouragement and the support of the democratically controlled House and Senate. One question that is not addressed, however, is whether it is the government’s responsibility to mandate employee benefits. Aren’t employers in a better position to determine and balance the needs of their employees against the demands of the marketplace to remain competitive, if not viable? Legislation like the HFA, and the Milwaukee Paid Sick Leave Ordinance (which was passed in November 2008 but has not yet been implemented due to pending litigation), demonstrate the truth of the adage that yesterday’s fringe benefits are tomorrow’s expectations. Indeed, following on the same track, is a recently proposed bill that would amend the Fair Labor Standards Act (FLSA) to require certain employers to provide employees with a week of paid vacation annually and, after three years, increase the paid time off to two weeks.   
To the extent these laws become effective, many employers will be forced to increase operating expenses in an already challenging marketplace and, as a result, may have to make even more difficult business decisions. Proactive employers will stay informed by monitoring this legislative train, which is adding more cars as it moves down the track.
Thomas P. Krukowski, Esq.
Krukowski & Costello, S.C.
Legislative Partner

Krukowski &
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Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
Ph: 920.232.6409
Fx: 920.231.1247   

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