The Home Care Alliance recently held a webinar on the New Sick Leave Regulations with the law firm KurkerPaget. KurkerPaget has been hard at work trying to answer the numerous questions about the new policy. They have attempted to answer the questions that members have provided to them last week to the best of their ability. You will find these questions and their answers to them below. Some of the questions were unclear to them, and others were so policy-specific that they could not answer them outside of an attorney/client relationship. Please note that although their answers are based on the sick leave law regulations, their responses should not be construed as legal advice, and should not be relied upon for that purpose. At this point, members are free to contact KurkerPaget if they want help answering additional questions or to have us review their policies.
HCA Webinar Follow-Up Questions/Answers
Question: We have a policy in regards to agency closed holidays. If an employee calls in the day before or day after the holiday, they forfeit the holiday and cannot submit sick and/or vacation time in place. Can we still do that? My guess says that we must allow sick time use but do not have to pay holiday?
Answer: These types of policies are okay with regards to not paying for the holiday, but an employer must allow an employee to use earned sick leave.
Question: Do we have to pay orientation/training time worked?
Answer: This is not addressed in the regulations; the Attorney General’s Office has not issued any guidance on whether such meetings/trainings should be considered actual work for purposes of accruing employee sick leave.
Question: If an employee accrues 40 hours in 2015, carries it over to 2016, and then uses it all in January, does the employer have to start accruing more time for the employee in 2016 or can you wait until the following year, 2017?
Answer: The employee should begin accruing again (up to 40 hours), but the employer is not required to permit the employee to use the additional earned sick leave in 2016 because employee has already used 40 hours in 2016.
Question: For per diem/per visit employees, for whom you pay a flat travel rate for each visit, does the travel rate need to be included in the calculation?
Answer: We are not sure that we understand how this question relates to employee sick leave. If the employee is paid for travel time ordinarily, this time/pay should be included to reasonably estimate the time the employee is working for purposes of calculating the employee’s accrual of sick time.
Question: Earning hours for “actively working” … so if an employee comes in for an in-service (paid for time in training, but they are not working), we do NOT need to count these hours toward accrued time? Is this correct?
Answer: The regulations do not use the term “actively working,” although they use the term “actual work” for determining when an employee begins to accrue earned sick leave. Although the regulations do not address this issue specifically, we have no reason to believe that trainings that occur as a requirement of an employee’s employment would be exempted for purposes of accrual.
Question: Could we pay our per diem employees an hourly rate that a regular full time staff [employee] is getting hourly? Ex. Avg. RPT. Paid $38/hr. which also is the rate paid staff they are paid when working in the office. i.e., conference time.
Answer: You need to provide a reasonable estimate of the time that the employee is spending to complete her assignment. If the hypothetical you provide is a reasonable calculation, it is fine.
Question: “Actual first day of work.” Does this include a paid orientation day? Many employees who attend a paid orientation day do not start working the field for a while after an orientation.
Answer: See above. This is not addressed in the regulations; the Attorney General’s Office has not issued any guidance on whether such meetings/trainings should be considered actual work for purposes of accruing employee sick time.
Question: If an employee carries over 30 hours into the next year (January 1, 2016), are they only eligible to accrue another 10 hours that year (2016) or are they eligible to accrue another 40 hours?
Answer: Employers may cap accrual and use to 40 hours per year.
Question: We have a current paid time off policy in place which we plan to [use to] access the Safe Harbor. Can we modify our paid time off policy to a sick time policy and keep the accrual the same 30 hours and lump sum accrual until the end of this year?
Answer: We cannot answer questions that are policy-specific without reviewing that policy.
Question: Does the employee need to provide documentation of use for each and every instance? Even 1 hour?
Answer: Employers can require employees to personally verify that any use of earned sick time was for allowable purposes, but can only require medical documentation in limited circumstances.
Question: How do we determine worked for baylors
Answer: We are not sure that we understand what is being asked, and it would be difficult to answer without speculating.
Question: Can you clarify the statement under paid time off policies… employers that have unlimited sick leave policies are not required to track accrual or allow any rollover?
Answer: If an employer does not limit the amount of sick time an employee can take in a year, they do not have to track accruals or provide rollover to the employees. Of course, this assumes that the employee would be able to use at least 40 hours of earned sick leave at any point in the year.
Question: Just to be clear – we have 24 hours per week employees who earn about 30 hours of sick time, but also earn additional personal and vacation time that equal over 40 hours in total. We don’t have to give them another 10 hours of sick time to get them to the 40 hours, do we?
Answer: We cannot answer questions that are policy-specific without reviewing that policy. Generally, as long as you are providing at least 40 hours of for the same protected uses and under the same conditions as those provided for in the sick leave law, the policy is compliant.
Question: Our current accruals are less than 1 hour for every 30 hours worked, but over a calendar year earn more than 40 hours. Do we need to change our accrual rates?
Answer: We cannot answer questions that are policy-specific without reviewing that policy. Generally, employees must be permitted to accrue earned sick leave in increments of no less than one hour for every 30 hours worked.
Question: If an employee works 10 hours a day but is paid for 14, what is the appropriate accrual and how should the employee be paid for sick time?
Answer: Earned sick leave accrues on no less than a one-hour for every thirty hours actually worked or reasonably estimated to have worked.
Question: If an employee has an earned time bank of 41 hours, and on January 1, 2016 they carry over that balance, can we put that balance towards their sick time?
Answer: We cannot answer questions that are policy-specific without reviewing that policy.
Question: Clarification on lump sum?
Answer: We are not sure that we understand what is being asked, and it would be difficult to answer without speculating.
Question: If an employee carries over 30 hours of sick time to the next calendar year, is the employee eligible to accrue 10 additional hours that year? If they use 40 hours of sick time, do they continue to accrue for that year?
Answer: Yes, employees are able to accrue and use 40 hours of sick time per calendar year.
Question: As of July 1st, can we modify our Earned Time to a Sick Time bank?
Answer: We are not sure that we understand what is being asked, and it would be difficult to answer without speculating.
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