Alexandra Clauss answers FAQs on Vermont’s Earned Sick Time bill

Alexandra Clauss presents this alert to provide information about Vermont’s Earned Sick Time bill.  The Earned Sick Time bill, or H.187, has passed the house and senate and is awaiting Governor Shumlin’s signature, making Vermont the fifth state to pass legislation providing paid sick days to employees.  The version of the bill that passed the house and senate is available here, and it will become 21 V.S.A. §§ 481–486.

Here are answers to some of the questions you may have about the bill:

Q1:  What does the Earned Sick Time bill do?

All employers doing business in or operating in the State of Vermont are covered by this bill. The bill entitles covered employees to accrue one hour of earned sick time for every 52 hours worked. Employers can limit the amount of earned sick time an employee can accrue to 24 hours in a 12-month period during 2017 and 2018.  In 2019 and thereafter, employers can limit the amount of earned sick time an employee can accrue to 40 hours in a 12-month period.

Q2:  When will employers have to start complying with this bill?  Are there any exceptions for small businesses?

Employers with more than five employees who work on average 30 or more hours per week must start providing earned sick time on January 1, 2017.  Employers with five or fewer employees who are employed for an average of 30 or more hours per week, must start providing earned sick time on January 1, 2018.  As such, as of January 1, 2017, all employers doing business in or operating within Vermont, regardless of size, will need to provide earned sick time in compliance with the law.

Q3:  Which employees are eligible for earned sick time?

Generally, all employees who work on average at least 18 hours per week will be eligible for earned sick time. The bill contains several exceptions for several types of workers who are not eligible for earned sick time, including:  individuals under 18 years of age, seasonal employees (employees who work 20 or fewer weeks in a 12-month period in a job that is scheduled to last 20 weeks or fewer), per diem employees of health care facilities, and other per diem/intermittent employees if they work only when they are available to work, are under no obligation to work for the employer offering the work and have no expectation of continuing employment.  The full list of exceptions will be at 21 VSA § 481(5).

Q4:  How do employees earn sick time?

There are several options for employers to provide their employees earned sick time once it takes effect, and employers can choose which method to use:

Employees can accrue earned sick time each pay period; Employees can accrue earned sick time on a quarterly basis, provided that an employee may use earned sick time as it accrues during each quarter; or Employers who offer a paid time off policy can give employees the full amount of accrual in Q1 at the beginning of each annual period.

Q5:  What can earned sick time be used for?

An employee can use earned sick time for any of the following reasons:

The employee is ill or injured.

The employee obtains professional diagnostic, preventive, routine, or therapeutic health care.

The employee cares for a sick or injured parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, including helping that individual obtain diagnostic, preventive, routine, or therapeutic health treatment, or accompanying the employee’s parent, grandparent, spouse, or parent-in-law to an appointment related to his or her long-term care.

The employee is arranging for social or legal services or obtaining medical care or counseling for the employee or for the employee’s parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, who is a victim of domestic violence, sexual assault, or stalking or who is relocating as the result of domestic violence, sexual assault, or stalking. As used in this section, “domestic violence,” “sexual assault,” and “stalking” shall have the same meanings as in 15 V.S.A. § 1151.

The employee cares for a parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, because the school or business where that individual is normally located during the employee’s workday is closed for public health or safety reasons.

Q6:  What hours count towards accrual of earned sick time?

All hours actually worked by non-exempt employees will count towards the accrual of earned sick time.  However, an employer can limit to 40 the number of hours in a workweek that will count towards the accrual of earned sick time for exempt employees.  Regardless of the number of hours worked by an exempt or non-exempt employee, an employer can limit the total number of earned sick time accrued in a 12-month period to the amounts set forth in Q1.

Q7:  Can employers impose any waiting or probationary period before an employee can use earned sick time?

Yes.  Once an employer becomes subject to the law, (either on January 1, 2017 or January 1, 2018, depending on the size of the employer), employers can impose a waiting period on existing and new employees of up to one year.  During the waiting period, an employee must accrue earned sick time, but can be prohibited from using the earned sick time until after he or she has completed the waiting period.

Q8:  How many hours of earned sick time can an employee carry over from one year to the next?

Earned sick time that remains unused at the end of every annual period is carried over to the next annual period, and the employee continues to accrue sick time at the rate in Q1 in the next annual period.  However, employers can limit the total amount of earned sick time an employee may use during an annual period to the limits in Q1.  At their discretion, employers can pay out accrued but unused earned sick time at the end of an annual period, and then the amount for which the employee was compensated would not carry over.  Please note that if an employer offers a paid time off policy and provides an employee with at least the full amount of earned sick time at the beginning of each annual period, carry-over does not apply.  See Q14.

Q9:  Do employers have to pay out earned but unused sick time at separation from employment?

No.

Q10:  Is there any way employers can limit an employee’s use of earned sick time?

An employer can require an employee who is planning to take earned sick time to make reasonable efforts to avoid scheduling routine or preventative health care during regular working hours and can require that an employee notify the employer as soon as practicable of the intent to take earned sick time and the expected duration of the employee’s absence.

Q11:  May an employee work additional hours or shifts instead of using earned sick time?

Yes, but only if both the employer and employee agree to this arrangement.

Q12:  If an employee uses earned sick time, may the employer require the employee to find a replacement?

No.  An employer can never require an employee to find a replacement.

Q13:  Will employers have any new posting requirements?

Yes, employers will be required to post a notice in a the form to be provided by the Commissioner of Labor and to notify employees of their rights to earned sick time at the time of the employee’s hire.

**Q14:  What if an employer already offers some form of paid time off to its employees?**

An employer will be in compliance with the earned sick leave provisions if it offers paid time off that employees may use for the reasons set for in Q5, so long as the paid time off accrues and may be used at a rate that is equal or greater to the rate in Q1.  If an employer provides an employee with the full amount of paid time off at the beginning of each annual period, carry-over in Q8 does not apply.  Nothing prevents an employer from providing paid time off that is more generous than the earned sick time provided in H.187.  If employers can use paid time off for the same purposes and with the same rights as they would be able to use earned sick time, an employer does not need to adopt a new or separate earned sick leave policy.

Q15:  What else should I know about the Earned Sick Time bill?

The Earned Sick Time bill also protects employees from discharge and retaliation for lodging a complaint of a violation of the earned sick time provisions, cooperating with the Vermont Commissioner of Labor in an investigation of a violation, or if the employer believes the employee may lodge a complaint or cooperate in an investigation of a violation.  Employers who violate provisions on earned sick time will be subject to the same penalties as for nonpayment of wages and benefits under 21 V.S.A. § 345.  On or before November 15, 2017, the Commissioner of Labor and the Secretary of Commerce and Community Development will develop a program to provide employers with five or fewer employees with assistance related to the development of time off policies.

Practical Advice:

In advance of January 1, 2017 (or January 1, 2018 for employers with 5 or fewer employees who work on average at least 30 hours per week), employers should review and revise any existing paid time off policies for compliance with the provisions of Vermont’s Earned Sick Time bill.  Employers who do not currently provide any form of paid time off will need to adopt compliant earned sick time policies in advance of the applicable effective date.  Employers should also familiarize themselves with the Earned Sick Time provisions in anticipation of employee questions.