Essentially, the OHFA will grant all employees working for companies with 25 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 1,560 total hours per year will receive a pro rated amount of paid time off. Sick leave will begin to accumulate immediately, but employees will not be able to use it until they have been employed for 90 days. The paid sick leave must accrue at least monthly, and except for the initial 90 days of employment, employees will be able to use it as it is accrued. Employers will not be able to prohibit employees from carrying over up to 7 days of unused paid time off per year.
Similar to the FMLA, but without the FMLA's level of specificity, the OHFA will also allow for the use of incremental (i.e., less than a full day) time off, 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. Finally, it will require employers to keep records documenting hours worked and paid sick leave taken by employees for a period of 3 years.
Proposed O.R.C. 4114.07(B) is what I believe to be the saving grace for most employers, and why I think the OHFA will not result in monumental practical changes for the vast majority of companies that already provide paid time off. That section provides: "An employer with a leave policy providing paid leave options shall not be required to modify such policy, if such policy offers an employee the option at the employee’s discretion to take paid leave that is at least equivalent to the sick leave described in this section." As I read that section, and this is where my colleague and I differ, 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 OHFA 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 treble damages and attorneys fees. Take a look at proposed O.R.C. 4114.10(C)(2): "No employer shall discharge or in any manner discriminate against any employee for opposing any practice made unlawful by this Act, including ... using paid sick leave taken pursuant to 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 will hamstring employers from taking action against any employee who is out for even a day with an illness.
There are other serious gaps in the statute. For example, the OHFA states that it covers all employers with 25 or more employees. If a company has 1,000 employees nationwide, but only maintains one Ohio facility with 15 employees, will the OHFA apply to that employer? What does "physical or mental illness, injury or medical condition" mean? What type of certification by a health care professional will support an extended leave? Can an employer dispute such a certification and obtain a second opinion?
The legislature, and if necessary, Ohio's voters, should take a long, hard look at these serious deficiencies in the OHFA, 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 director of commerce 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.
16 comments:
While I agree with part of what is said in regards to the specifics of the act being a bit sketchy, you surely realize that this most certainly could affect millions of Ohioans? I believe the estimate to be quite accurate in regards to workers who have no policy for paid sick leave. The construction industry is one example. In the majority of companies, union and non-union alike, paid sick days are only provided to management, not the actual craft force workers. Losing a day's pay can really hurt a family in these difficult financial times and I think mandating paid sick leave is a consession all employers should make to their full-time employees. Though I do think 5 days annually would be sufficient.
We need to think about the impact on jobs in Ohio, especially at this time of a nationwide recession. Businesses like grocery stores (often living on the edge)larger department stores, and companies with large customer service departments would be hit with staggering increases in operating expense; easily in the $300,000 to $400,000 range.
Many of our marginally employed workers and entry level workers get their start in those kinds of settings.
I am certain that it would put the company that I work for out of business. IF we were to survive, we would have to relocate 800 jobs to PA or WV.
The timing of this concept couldn't be worse. While it sounds good on the surface, it will most certainly be another factor that prices our citizens out of work.
We need to think about the impact on jobs in Ohio, especially at this time of a nationwide recession. Businesses like grocery stores (often living on the edge)larger department stores, and companies with large customer service departments would be hit with staggering increases in operating expense; easily in the $300,000 to $400,000 range.
Many of our marginally employed workers and entry level workers get their start in those kinds of settings.
I am certain that it would put the company that I work for out of business. IF we were to survive, we would have to relocate 800 jobs to PA or WV.
The timing of this concept couldn't be worse. While it sounds good on the surface, it will most certainly be another factor that prices our citizens out of work
Jim B, Amen.
What effect will this have on attracting new business to Ohio? Just the administrative burden alone is formidable, let alone the potential costs. If I have the responsibility of choosing between building a new plant in Ohio, which has the mandated 7 paid sick days, or another state which doesn't have such a provision, I would have to have a lot of other positives to the Ohio location.
Even if 2.2 Million employees have no paid sick time - lets cut it in half to 1 Million - that is a LOT of workers who risk losing their job if they or their child is sick. A huge number of single parents - particularly women- who struggle to manage life, job and raising the next generation and be a good working role model. So why punish them for working hard? Not passing this bill will affect the poorest and the most marginalized of citizens - sadly it would be easy to say - those people probably can not afford the time or computer to blog on sites like this.
It is so easy to see this from only the business aspect, but we are not talking about the almighty dollar profit - who works to make the company their money anyways? Monkeys?
While I sympathize with businesses that may go out of business, if you cannot hack the operating costs of allowing your workers to take their kids to the dentist or take days off when they are sick then your company sucks and you are a "living dead" company. Whatever happened to free-market principles? If a company is so weak that they cannot afford to give their employees sick days they weren't going to make it very far...especially a company that has more than 25 employees, which is the threshold. As a secondary question, do these companies really want their employees to come into work sick or be all stressed out when their kid is sick and has to go to the doctor but they can't take them because of work? That lowers productivity I guarantee. But I guess the answer employers give is that those companies should take time off unpaid. To which I reply, "What assholes!"
unbesteveable, you miss the point. The issue is not whether the OHFA will cause businesses to close. The issue is whether Ohio's fragile business climate can tolerate a law that sets it apart from all 49 other states and will make it more expensive to operate in Ohio (in some cases prohibitively so). If a business has a choice between Ohio and any of 40 other states where it will not have to provide 7 days of paid sick leave, why would that business choose to operate in our state. This measure is a job killer not because of current jobs that will be lost by businesses closing, but because of new jobs that will never be created and jobs that will go to other states.
This was not thought out with anyone who knows anything about administering programs and plans. All of the vague generalities of this plan will come home to roost. If they do give paid time off, make it at least a half-day and no carryover from year to year. If you are healthy enough and never miss work, you won't miss these days. The abuse of this program could also run out of control, especially if someone has a tame doctor who will give them a week off just for visiting the office. It will become an extra week of vacation and more. If you are going to do good, do good for everyone, including those who have to administer the plan.
It’s clearly an ill conceived plan that will inhibit jobs from coming to Ohio and urge our company to move production facilities to PA or WV.
We aren’t callous people. We work mainly for charities of the highest standards. Of course we give our employees time off when the situation warrants! We also have to be there for our clients, so we can’t have a practice that allows people to just miss work on a whim. We also can’t hit our charitable clients with this kind of increase.
It seems to me, that if this idea is overwhelmingly popular, we should get with the legislators to quickly craft legislation that is less onerous. For example, exempt part-time employees, make the effective date one year from date of hire, don’t require carry over of unused days, and so on. We surely should be able to compromise on something more palatable that allows the legislators to save face.
As a wise person once said, “Be careful what you ask for.”
It’s clearly an ill conceived plan that will inhibit jobs from coming to Ohio and urge our company to move production facilities to PA or WV.
We aren’t callous people. We work mainly for charities of the highest standards. Of course we give our employees time off when the situation warrants! We also have to be there for our clients, so we can’t have a practice that allows people to just miss work on a whim. We also can’t hit our charitable clients with this kind of increase.
It seems to me, that if this idea is overwhelmingly popular, we should get with the legislators to quickly craft legislation that is less onerous. For example, exempt part-time employees, make the effective date one year from date of hire, don’t require carry over of unused days, and so on. We surely should be able to compromise on something more palatable that allows the legislators to save face.
As a wise person once said, “Be careful what you ask for.”
This proposal is so vague that the lawyers can't agree on what it says. Frankly, the voters have no chance of making a fully informed choice. How can they expect Ohioans to vote on something when no one can agree on what we are voting on?
Sounds like even more time in court trying to figure out what we voted on. The smoking ban approved a year or so ago was very specific and clear. And we still spent a year trying to turn it on. (but I digress)
We can't figure out what a "day" means, if carry over is unlimited (7 per year) or how to do the accrual monthly with 13 weeks of look back. I'm a programmer charged with being ready for this thing, and I've got dozens of questions. My list does not even address half of what the HR folks are asking. They have the additional burden of having an equivalent plan in place before it becomes law. But as they are asking, equivalent to what?
Does anyone know what the timetable for implementation will be? (I’ll take an informed guess)
Will it take a year of hearings to draft a usable law? And then allow a reasonable amount of time to accommodate these details.
Will it take effect on Jan 1, 2009, before the details are fully known and there is time for payroll software to be rewritten?
The voters (assuming it is passed) will be confused by why it does not take effect in Nov. Anything past a Jan. start will get very loud.
Is there any way to get the AG, Director of Commerce, the courts or ??? to go “on the record” as to what this mess actually says? Even if the final details changed a little, guidance before we vote would be huge.
Greg,
Remarkably, the OHFA will take effect 30 days after the election if it's passed. Sadly, businesses will have only until December 4 to come into compliance with this poorly drafted law. Much of that compliance will have to be educated guesses, until courts start interpreting the likely mistakes that many companies will make.
This is not well thought out. I don't begrudge the sick time to someonw who earns it, but carrying it over is very extreme. Whoever proposed this appears to have wanted it very vague or they didn't consult anyone who understood benefits and sick time. This will be a mess for everyone.
ubesteveable
What happened to free market indeed? That is a good question. I don't think a free market mandates that paid time is given to anyone unless they actually work for it. People who are sick are who are taking care of sick people already have rights under FMLA. How much more regulation will the businesses in Ohio be able to absorb. Many companies who can afford to offer benefits already do so as they are competing for talent. Your statement regarding companies being "so weak" they cannot afford to give their employees sick time is extremely short sighted. Small business is one of the fastest growing segment of the business climate. Most businesses are small before they become large. Certainly they have less capital. Think Ray Kroc and McDonald's when it was a small hamburger stand
I say just put the Ohio Healthy Families Act, where it should be. In the minds and hands of the people and for the people to vote on it in November. Isn't that what our counrty is about, people? Yet, did somewhere along the way, was that part forgotten?
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