Comparing SB 824 → AB 400 — Employment: paid sick days.

Struck = only in SB 824 · added = only in AB 400.

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SESSION history | hilite | pdf | print version 17105057D SENATE BILL NO.
AB400:v99#DOCUMENTBill Start CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION Assembly Bill No.
824 AMENDMENT IN THE NATURE OF A SUBSTITUTE (Proposed by the Senate Committee on Commerce and Labor on February 3, 2017) (Patron Prior to Substitute--Senator Wexton) A BILL to amend the Code of Virginia by adding in Chapter 3 of Title 40.1 an article numbered 2.1, consisting of sections numbered 40.1-33.1 through 40.1-33.12, relating to the provision of paid medical leave to employees;
400Introduced  by  Assembly Member MaFebruary 14, 2011 An act to amend Section 226 of, and to add Article 1.5 (commencing with Section 245) to Chapter 1 of Part 1 of Division 2 of, the Labor Code, relating to employment.
civil penalties.
LEGISLATIVE COUNSEL'S DIGESTAB 400, as introduced, Ma.
Be it enacted by the General Assembly of Virginia:
Employment:
1.
paid sick days.Existing law authorizes employers to provide their employees paid sick leave.This bill would provide that an employee who works in California for 7 or more days in a calendar year is entitled to paid sick days, as defined, which shall be accrued at a rate of no less than one hour for every 30 hours worked.
That the Code of Virginia is amended by adding in Chapter of Title 40.1 an article numbered 2.1, consisting of sections numbered 40.1-33.1 through 40.1-33.12, as follows:
An employee would be entitled to use accrued sick days beginning on the 90th calendar day of employment.
Article 2.1.
The bill would require employers to provide paid sick days, upon the request of the employee, for diagnosis, care, or treatment of health conditions of the employee or an employee’s family member, or for leave related to domestic violence or sexual assault.
Paid Medical Leave.
An employer would be prohibited from discriminating or retaliating against an employee who requests paid sick days.
§ 40.1-33.1.
The bill would require employers to satisfy specified posting and notice and recordkeeping requirements.
Definitions.
The bill would also make conforming changes.This bill would require the Labor Commissioner to administer and enforce these requirements, including the promulgation of regulations, investigation, mitigation, and relief of violations of these requirements.
As used in this article, unless the context requires a different meaning:
This bill would authorize the Labor Commissioner to impose specified administrative fines for violations and would authorize an aggrieved person, the commissioner, the Attorney General, or an entity a member of which is aggrieved to bring an action to recover specified civil penalties against an offender, as well as attorney’s fees, costs, and interest.
"Employer" means any employer, as such term is defined in § 40.1-2, that employed an average of 25 or more full-time employee equivalents during the preceding year.
The bill would specify that it does not apply to employees covered by a collective bargaining agreement that provides for paid sick days, nor does it lessen any other obligations of the employer to employees.
"Employer" does not include any state, local, or regional governmental agency or institution.
This bill would further specify that it does not apply to employees in the construction industry covered by a collective bargaining agreement if the agreement expressly waives the requirements of this article in clear and unambiguous terms.
"Family member" means any of the following:
However, the bill would specify that it applies to certain public authorities, established to deliver in-home supportive services, except where a collective bargaining agreement provides for an incremental wage increase sufficient to satisfy the bill’s requirements for accrual of sick days.Digest Key Vote:
1.
MAJORITY   Appropriation:
A child, which for purposes of this article means a biological, adopted, or foster child;
NO   Fiscal Committee:
a stepchild;
YES   Local Program:
a ward;
NO  Bill TextThe people of the State of California do enact as follows:SECTION 1. The Legislature finds and declares the following:(a) Nearly every worker in the State of California will at some time during the year need some time off from work to take care of his or her own health or the health of family members.(b) Many workers in California do not have any paid sick days, or have an inadequate number of paid sick days, to care for their own health or the health of family members.(c) Low-income workers are significantly less likely to have paid sick time than other workers.(d) Providing workers time off to attend to their own health care and the health care of family members will ensure a healthier and more productive workforce in California.(e) Paid sick days will have an enormously positive impact on the public health of Californians by allowing sick workers paid time off to care for themselves when ill, thus lessening their recovery time and reducing the likelihood of spreading illness to other members of the workforce.(f) Paid sick days will allow parents to provide personal care for their sick children.
or a child to whom the employee stands in loco parentis.
Parental care ensures children’s speedy recovery, prevents more serious illnesses, and improves children’s overall mental and physical health.(g) Providing paid sick days is affordable for employers and good for business.(h) Employers who provide paid sick days enjoy greater employee retention and reduce the likelihood of employees coming to work sick.
This definition of a child is applicable regardless of age or dependency status;
Studies have shown that costs of decreased productivity caused by sick workers exceed the costs of employee absenteeism.(i) Many adults have significant elder care responsibilities requiring them to take time off from work or to work reduced hours.(j) Employees frequently lose their jobs or are disciplined for taking sick days to care for sick family members or to recover from their own illnesses.(k) Workers whose jobs involve significant contact with the public, such as service workers and restaurant workers, are very unlikely to have paid sick days.
2.
Often, these workers have no choice but to come to work when they are ill, thereby spreading illness to coworkers and customers.(l) Domestic violence and sexual assault affect many persons without regard to age, race, national origin, sexual orientation, or socioeconomic status.(m) Domestic violence is a crime that has a devastating effect on families, communities, and the workplace.
A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee's spouse or a person who stood in loco parentis when the employee was a minor child;
It impacts productivity, effectiveness, absenteeism, and employee turnover in the workplace.
3.
The National Crime Survey estimates that 175,000 days of work each year are missed due to domestic violence.(n) Survivors of domestic violence and sexual assault may be vulnerable at work when trying to end an abusive relationship because the workplace may be the only place where the perpetrator knows to contact the victim.
A spouse;
Studies show that up to one-half of domestic violence victims experience job loss.
4.
Forty percent reported on-the-job harassment.
A grandparent;
Nearly 50 percent of sexual assault survivors lose their jobs or are forced to quit in the aftermath of the assaults.(o) Affording survivors of domestic violence and sexual assault paid sick days is vital to their independence and recovery.SEC.
5.
2. In enacting this act, it is the intent of the Legislature to do the following:(a) Ensure that workers in California can address their own health needs and the health needs of their families by requiring employers to provide a minimum level of paid sick days including time for family care.(b) Decrease public and private health care costs in California by enabling workers to seek early and routine medical care for themselves and their family members and to address domestic violence or sexual assault.(c) Protect employees in California from losing their jobs while they use sick days to care for themselves or their families.(d) Provide economic security to employees in California who take time off from work for reasons related to domestic violence or sexual assault.(e) Safeguard the welfare, health, safety, and prosperity of the people of and visitors to California.SEC.
A grandchild;
3. Section 226 of the Labor Code is amended to read:226. (a) Every An employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees to each employee, either as a detachable part of the check, draft, or voucher paying the employee’s wages, or separately when if wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except for any employee whose unless the employee’s compensation is solely based on a salary and who the employee is exempt from payment of overtime under subdivision (a) of Section 515 or any an applicable order of the Industrial Welfare Commission, (3) the number of piece-rate units earned and any the applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and his or her social security number, except that by January 1, 2008, only the last four digits of his or her social security number or an employee identification number other than a social security number may be shown on the itemized statement, (8) the name and address of the legal entity that is the employer, and (9) paid sick leave accrued and used pursuant to Article 1.5 (commencing with Section 245), and (10) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.
or 6.
The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California.(b) An employer that is required by this code or any a regulation adopted pursuant to this code to keep the information required by subdivision (a) shall afford current and former employees the right to inspect or copy the records pertaining to that current or former employee, upon reasonable request to the employer.
A sibling.
The employer may take reasonable steps to assure the identity of a current or former employee.
"Full-time employee equivalent" means the sum of (i) the number of employees who, with respect to any month, are employed, on average during the month, not fewer than 40 hours per week and (ii) the number obtained by dividing the aggregate number of hours of service of employees who are not described in clause (i) for the month by 160.
If the employer provides copies of the records, the actual cost of reproduction may be charged to the current or former employee.(c) An employer who receives a written or oral request to inspect or copy records pursuant to subdivision (b) pertaining to a current or former employee shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request.
"Health care provider" has the same meaning ascribed to the term in § 38.2-3438.
A violation of this subdivision is an infraction.
"Minimum work requirement" means the requirement that an employee work an average of 18 hours during each of the weeks comprising the employee's pay period.
Impossibility of performance, not caused by or a result of a violation of law, shall be an affirmative defense for an employer in any action alleging a violation of this subdivision.
"Paid medical leave" means time off from work that is provided by an employer to an employee pursuant to § 40.1-33.3.
An employer may designate the person to whom a request is made under this subdivision will be made.(d) This section does not apply to any an employer of any a person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant.(e) An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney’s fees.(f) A failure by an employer to permit a current or former employee to inspect or copy records within the time set forth in subdivision (c) entitles the current or former employee or the Labor Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty from the employer.(g) An employee may also bring an action for injunctive relief to ensure compliance with this section, and is entitled to an award of costs and reasonable attorney’s fees.(h) This section does not apply to the state, to any a city, county, city and county, district, or to any other governmental entity, except that if the state or a city, county, city and county, district, or other governmental entity furnishes its employees with a check, draft, or voucher paying the employee’s wages, the state or a city, county, city and county, district, or other governmental entity shall, by January 1, 2008, use no more than the last four digits of the employee’s social security number or shall use an employee identification number other than the social security number on the itemized statement provided with the check, draft, or voucher.SEC.
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"Pay period" means the regular pay period established by the employer in accordance with subsection A of § 40.1-29.
4. Article 1.5 (commencing with Section 245) is added to Chapter 1 of Part 1 of Division 2 of the Labor Code, to read:
§ 40.1-33.2.
Article  1.5. Paid Sick Days245. This article shall be known and may be cited as the Healthy Workplaces, Healthy Families Act of 2011.245.5. For the purposes of this article the following terms have the following meanings:(a) “Employee” does not include the following:(1)  An employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of employees, and expressly provides for paid sick days or a paid leave or paid time off policy that permits the use of sick days for those employees, final and binding arbitration of disputes concerning the application of its paid sick days provisions, premium wage rates for all overtime hours worked, and regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.(2) An employee in the construction industry covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and regular hourly pay of not less than 30 percent more than the state minimum wage rate, and the agreement expressly waives the requirements of this article in clear and unambiguous terms.
Entitlement to paid medical leave.
For purposes of this subparagraph, “employee in the construction industry” means an employee performing onsite work associated with construction, including work involving alteration, demolition, building, excavation, renovation, remodeling, maintenance, improvement, repair work, and any other work as described by Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, and other similar or related occupations or trades.(b) “Family member” means any of the following:(1) A child, which for purposes of this article means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis.
Every employer shall provide to its employees paid medical leave as provided in this article.
This definition of a child is applicable regardless of age or dependency status.(2) A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.(3) A spouse.(4) A registered domestic partner.(5) A grandparent.(6) A grandchild.(7) A sibling.(c) “Health care provider” has the same meaning as defined in paragraph (6) of subdivision (c) of Section 12945.2 of the Government Code.(d) “Paid sick days” means time that is compensated at the same wage as the employee normally earns during regular work hours and is provided by an employer to an employee for the purposes described in Section 246.5.(e) “Small business” means an employer who employs 10 or fewer employees during 20 or more calendar workweeks in the current or preceding calendar year.246. (a) An employee who works in California for seven or more days in a calendar year is entitled to paid sick days as specified in this section.(b) (1) An employee shall accrue paid sick days at the rate of not less than one hour per every 30 hours worked, beginning at the commencement of employment or the operative date of this article, whichever is first.(2) An employee who is exempt from overtime requirements as an administrative, executive, or professional employee under a Wage Order of the Industrial Welfare Commission is deemed to work 40 hours per workweek for the purposes of this section, unless the employee’s normal workweek is less than 40 hours, in which case the employee will accrue paid sick days based upon that normal workweek.(c) An employee shall be entitled to use accrued paid sick days beginning on the 90th calendar day of employment, after which day the employee may use paid sick days as they are accrued.(d) Accrued paid sick days shall carry over to the following calendar year.
When an employee uses paid medical leave for a purpose set forth in § 40.1-33.6, the employer shall compensate the employee for such time used at the same rate as the wage and with the same benefits that the employee would have earned or accrued had the employee worked such time during regular work hours.
However, an employer may limit an employee’s use of paid sick days as follows:(1) A small business employer may limit an employee’s use to 40 hours or five days in each calendar year.(2) All other employers may limit an employee’s use to 72 hours or nine days in each calendar year.(e) An employer is not required to provide additional paid sick days pursuant to this section if the employer has a paid leave policy or paid time off policy and the employer makes available an amount of leave that satisfies the accrual requirements of this section and that may be used for the same purposes and under the same conditions as specified in this section.(f) (1) Except as specified in paragraph (2), an employer is not required to provide compensation to an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment.(2) If an employee separates from an employer and is rehired by the employer within one year, previously accrued and unused paid sick days shall be reinstated.
§ 40.1-33.3.
The employee shall be entitled to use those paid sick days and to accrue additional paid sick days upon rehiring.(g) An employer may lend paid sick days to an employee in advance of accrual, at the employer’s discretion and with proper documentation.246.5. (a) Upon the oral or written request of an employee, an employer shall provide paid sick days for the following purposes:(1) Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.(2) For an employee who is a victim of domestic violence or sexual assault, the purposes described in subdivision (c) of Section 230 and subdivision (a) of Section 230.1.(b) An employer shall not require as a condition of using paid sick days that the employee search for or find a replacement worker to cover the days during which the employee uses paid sick days.(c) (1) An employer shall not deny an employee the right to use sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using sick days, attempting to exercise the right to use sick days, filing a complaint with the department or in a court alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article.(2) There shall be a rebuttable presumption of unlawful retaliation if an employer denies an employee the right to use sick days, discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against an employee within 90 days of any of the following:(A) The filing of a complaint by the employee with the Labor Commissioner or in a court alleging a violation of this article.(B) The cooperation of an employee with an investigation or prosecution of an alleged violation of this article.(C) Opposition by the employee to a policy, practice, or act that is prohibited by this article.247. (a) An employer shall give each employee written notice of the requirements of this article in English, Spanish, Chinese, and any other language spoken by at least 5 percent of the employees.
Accrual and use of paid medical leave.
The written notice shall state the following:(1) That an employee is entitled to accrue, request, and use paid sick days.(2) The amount of paid sick days provided for by this article.(3) The terms of use of paid sick days.(4) That retaliation or discrimination against an employee who requests paid sick days or uses paid sick days, or both, is prohibited and that an employee has the right under this article to file a complaint or bring a civil action against an employer who retaliates or discriminates against the employee.(b) In each workplace of the employer, the employer shall display a poster in a conspicuous place containing all the information specified in subdivision (a).
A.
The Labor Commissioner shall create a poster containing this information and make it available to employers.(c) An employer who willfully violates the notice and posting requirements of this section is subject to a civil penalty of not more than one hundred dollars ($100) per each offense.247.5. An employer shall keep for at least five years records documenting the hours worked and paid sick days accrued and used by an employee.
An employer shall provide paid medical leave to each employee who satisfies the minimum work requirement for a pay period.
An employer shall allow the Labor Commissioner access to these records with appropriate notice and at a mutually agreeable time to monitor compliance with this article.
The duty to provide paid medical leave shall start with the first pay period during which an employee satisfied the minimum work requirement.
An employer shall make these records available to an employee pursuant to Section 226.
Paid medical leave shall be provided to such employees at the following rates:
If an employer does not maintain adequate records pursuant to this section, it shall be presumed that the employee is entitled to the maximum number of hours accruable under this article, unless the employer can show otherwise by clear and convincing evidence.248. The Labor Commissioner is authorized and directed to coordinate implementation and enforcement of this article and to promulgate guidelines and regulations for those purposes.248.5. (a) The Labor Commissioner is authorized and directed to enforce this article, including investigating an alleged violation, and ordering appropriate temporary relief to mitigate the violation or to maintain the status quo pending the completion of a full investigation or hearing.(b) If the Labor Commissioner, after a hearing that contains adequate safeguards to ensure that the parties are afforded due process, determines that a violation of this article has occurred, he or she may order any appropriate relief, including reinstatement, backpay, the payment of sick days unlawfully withheld, and the payment of an additional sum in the form of an administrative penalty to an employee or other person whose rights under this article were violated.
1.
If paid sick days were unlawfully withheld, the dollar amount of paid sick days withheld from the employee multiplied by three, or two hundred fifty dollars ($250), whichever amount is greater, shall be included in the administrative penalty.
For each pay period starting in calendar year 2018 in which an employee satisfies the minimum work requirement, the employer shall provide to the employee one hour of paid medical leave, or proportionate share thereof, for each 50 hours worked;
In addition, if a violation of this article results in other harm to the employee or person, such as discharge from employment, or otherwise results in a violation of the rights of the employee or person, the administrative penalty shall include a sum of fifty dollars ($50) for each day or portion thereof that the violation occurred or continued.(c) Where prompt compliance by an employer is not forthcoming, the Labor Commissioner may take any appropriate enforcement action to secure compliance, including the filing of a civil action.
and 2.
In compensation to the state for the costs of investigating and remedying the violation, the commissioner may order the violating employer to pay to the state a sum of not more than fifty dollars ($50) for each day or portion of a day a violation occurs or continues for each employee or other person whose rights under this article were violated.
For each pay period starting in calendar year 2019 or thereafter in which an employee satisfies the minimum work requirement, the employer shall provide to the employee one hour of paid medical leave, or proportionate share thereof, for each 30 hours worked.
These funds shall be allocated to the Labor Commissioner to offset the costs of implementing and enforcing this article.(d) An employee or other person may report to the Labor Commissioner a suspected violation of this article.
However, if an employer commences its business operations after January 1, 2018, the employer shall provide to each employee who satisfies the minimum work requirement paid medical leave at the rate specified in subdivision 1 during the first year of its operations and at the rate specified in subdivision 2 for periods following its first year of operations.
The commissioner shall encourage reporting pursuant to this subdivision by keeping confidential, to the maximum extent permitted by applicable law, the name and other identifying information of the employee or person reporting the violation.
If an employer's pay period is less than one month, the employer shall award paid medical leave for each pay period in such amounts that in the aggregate for each month are equivalent to the monthly paid medical leave required to be awarded pursuant to this subsection.
However, the commissioner may disclose that person’s name and identifying information as necessary to enforce this article or for other appropriate purposes, upon the authorization of that person.(e) The Labor Commissioner, the Attorney General, a person aggrieved by a violation of this article, or an entity a member of which is aggrieved by a violation of this article may bring a civil action in a court of competent jurisdiction against the employer or other person violating this article and, upon prevailing, shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation, including reinstatement, backpay, the payment of sick days unlawfully withheld, the payment of an additional sum as liquidated damages in the amount of fifty dollars ($50) to each employee or person whose rights under this article were violated for each day or portion thereof that the violation occurred or continued, plus, if the employer has unlawfully withheld paid sick days to an employee, the dollar amount of paid sick days withheld from the employee multiplied by three;
B.
or two hundred fifty dollars ($250), whichever amount is greater;
An employee shall not be eligible to use paid medical leave that he has accrued under this article until he has been employed by his employer for 90 calendar days.
and reinstatement in employment or injunctive relief;
If an employee satisfies this 90-day qualification period with an employer, the employee shall not, following a break in continuous employment with the employer, be required to satisfy another qualification period with the employer.
and further shall be awarded reasonable attorney’s fees and costs, provided, however, that any person or entity enforcing this article on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive, or restitutionary relief, and reasonable attorney’s fees and costs.(f) In an administrative or civil action brought under this article, the Labor Commissioner or court, as the case may be, shall award interest on all amounts due and unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the Civil Code.(g) The remedies, penalties, and procedures provided under this article are cumulative.249. (a) This article does not limit or affect any laws guaranteeing the privacy of health information, or information related to domestic violence or sexual assault, regarding an employee or employee’s family member.
Following satisfaction of the qualification period requirement, an employee may use accrued paid medical leave in any pay period subsequent to the pay period in which it has been earned.
That information shall be treated as confidential and shall not be disclosed to any person except to the affected employee, or as required by law.(b) This article shall not be construed to discourage or prohibit an employer from the adoption or retention of a paid sick days policy more generous than the one required herein.(c) This article does not lessen the obligation of an employer to comply with a contract, collective bargaining agreement, employment benefit plan, or other agreement providing more generous sick days to an employee than required herein.(d) This article establishes minimum requirements pertaining to paid sick days and does not preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for greater accrual or use by employees of sick days, whether paid or unpaid, or that extends other protections to an employee.249.5. (a) A public authority created under Section 12301.6 of the Welfare and Institutions Code shall be required to meet the requirements of this article for individuals who perform domestic services comprising in-home supportive services under Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of the Welfare and Institutions Code.(b) A public authority may satisfy the requirements of this article by entering into a collective bargaining agreement that provides an incremental hourly wage adjustment in an amount sufficient to satisfy the accrual requirements of Section 246.
Any accrued paid medical leave is forfeited upon the employee's termination of employment with the employer for any reason, and the employee is not entitled to payment therefor.
However, any employee who returns to employment with a former employer for which the employee has satisfied the 90-day qualification period, no matter how long the break in employment or the reasons therefor, is immediately eligible to use any paid medical leave that accrues after his return to the employer's employment.
An employee who returns to employment with a former employer for which the employee has not satisfied the 90-day qualification period shall not be eligible to use any paid medical leave until he has been employed by his employer for 90 calendar days following his return to employment.
C.
The amount of time an employer provides in any form of paid leave that is used for multiple purposes including use as paid medical leave, such as paid time off or earned time off, shall satisfy the requirements of this article, so long as the rate of accrual of such leave satisfies the requirements of this article for the accrual of paid medical leave.
That such leave balances may be reduced by an employee utilizing such leave for other purposes, such as taking a vacation, shall not affect the fact that providing such leave satisfies the requirements of this article regarding the provision of paid medical leave.
§ 40.1-33.4.
Maximum accrual of paid medical leave and increment of use.
An employee may accumulate up to a maximum of 72 hours of paid medical leave.
An employee's balance of paid medical leave shall be reduced on an hour-for-hour basis for each hour or portion thereof that an employee uses paid medical leave for a purpose authorized pursuant to § 40.1-33.6.
§ 40.1-33.5.
Employee to provide notice of intent to use paid medical leave.
Employees shall make reasonable efforts to schedule paid medical leave when possible with the employer in a manner that does not unduly disrupt the employer's operations.
Whenever such scheduling is impossible or impracticable, employees shall provide their employers with reasonable written or verbal advance notice of their need to use paid medical leave.
Such requests shall include a reason for the absence involved and the expected duration of the leave.
Where the requirement for the leave is foreseeable, the employee shall provide such notice at least seven days in advance of such leave or, if giving seven days' advance notice is not possible, notice as soon as practicable after the employee becomes aware of the need to take such leave.
Where the requirement for the leave is unforeseeable, the employee shall provide notice as soon as practicable after the employee becomes aware of the need to take such leave.
§ 40.1-33.6.
Authorized use of paid medical leave.
Employees may use paid medical leave for any of the following purposes or reasons:
1.
To attend to the needs of the employee or a family member of the employee when such individual is suffering from a physical or mental illness, injury, or medical condition or has a need for dental care;
2.
To obtain professional medical, mental health, or dental diagnosis or care, or preventative medical, mental health, or dental care, for the employee or a family member of the employee;
or 3.
To participate in any civil or criminal legal proceeding related to or resulting from the employee or a family member of the employee being the victim of domestic or sexual violence.
§ 40.1-33.7.
Employer may require documentation.
An employer may require that a request to use paid medical leave that is either anticipated to last more than three consecutive days or that actually lasts for more than three consecutive days be supported by documentation, issued by a health care provider, certifying that the employee or the employee's family member qualified for the use of paid medical leave pursuant to subdivision 1 or 2 of § 40.1-33.6 or appropriate court records establishing the employee's eligibility to use paid medical leave pursuant to subdivision 3 of § 40.1-33.6.
The employee shall provide such documentation to the employer in a timely manner, not later than 30 days after the first day of the paid medical leave.
The employer shall not delay the commencement of the leave or withhold payment of wages for such leave period on the basis that the employer has not yet received such documentation.
If an employer requires such documentation and the employee is not covered by a policy of health insurance that would cover the full medical and direct ancillary costs associated with obtaining such documentation, the employer shall reimburse such employee for any out-of-pocket expenses incurred in obtaining such documentation.
An employer may require an employee to provide evidence documenting such unreimbursed medical and direct ancillary costs before reimbursing the employee for such expenses.
§ 40.1-33.8.
Employer may offer rescheduled work hours in lieu of paid medical leave.
A.
If an employee notifies his employer of intent to use accrued paid medical leave, the employer, at its option, may offer the employee the opportunity to reschedule the work hours for which the employee seeks to use the accrued paid medical leave.
The employer shall make such rescheduled work hours available within either the same pay period or within two weeks of the hours for which the employee sought to use accrued paid medical leave.
An employee may not unreasonably refuse such an offer of rescheduled work hours;
an employee who unreasonably refuses such an offer of rescheduled work hours is not eligible to use accrued paid medical leave for those hours he originally notified his employer that he was requesting to use accrued paid medical leave.
B.
In determining whether an employee unreasonably refused an offer of rescheduled hours, the Department shall consider the nature of the employment, whether the employer made a good faith effort to consider the nature of the employment, whether the employer made a good faith offer of the proposed rescheduled hours, whether the employee made a good faith effort to accommodate the employer's request that the employee work the rescheduled hours, and whether the rescheduled hours would have been an undue hardship upon the employee.
A refusal to work is not unreasonable if working the hours offered by the employer would cause an undue hardship for the employee.
C.
An undue hardship includes any situation where the proposed rescheduled hours would (i) cause the employee to work more than 40 hours per week;
(ii) conflict with other previously scheduled employment or scheduled psychological, medical, or dental appointments of the employee or a family member of the employee;
(iii) conflict with educational classes;
(iv) conflict with court proceedings or appointments with legal counsel;
(v) conflict with any court-ordered program, process, or event;
(vi) present a hardship because of the employee's disability or medical condition;
or (vii) cause child care coverage problems.
§ 40.1-33.9.
Civil penalties;
enforcement actions.
A.
Any employer that knowingly fails to provide paid medical leave to its employees in accordance with this article shall be subject to a civil penalty not to exceed $1,000 for each violation.
The Commissioner shall notify by certified mail any employer that he alleges has violated any provision of this article.
Such notice shall contain a description of the alleged violation.
The decision of the Commissioner shall be final.
Civil penalties owed under this section shall be paid to the Commissioner for deposit into the general fund by the State Treasurer.
The Commissioner shall prescribe procedures for the payment of proposed assessments of penalties that are not contested by employers.
Such procedures shall include provisions for an employer to consent to abatement of the alleged violation and pay a proposed penalty or a negotiated sum in lieu of such penalty without admission of any civil liability arising from such alleged violation.
B.
The Commissioner may require a written complaint of the violation of this article and, with the written and signed consent of an employee, may institute proceedings on behalf of an employee to enforce compliance with this article and collect the value of any paid medical leave unlawfully withheld from such employee, which shall be awarded to the employee entitled thereto.
Upon entry of a final order of the Commissioner, or upon entry of a judgment against the employer, the Commissioner or the court shall assess attorney fees of one-third of the amount set forth in the final order or judgment.
C.
Final orders of the Commissioner, the general district courts, or the circuit courts may be recorded, enforced, and satisfied as orders or decrees of a circuit court upon certification of such orders by the Commissioner or the court, as appropriate.
§ 40.1-33.10.
Waivers prohibited.
No employer shall require any employee, except executive personnel, to sign any contract or agreement that provides for the forfeiture of the employee's paid medical leave as a condition of employment or the continuance therein, except as otherwise provided by law.
§ 40.1-33.11.
Paid medical leave statements.
An employer, upon request of his employee, shall furnish to the employee a written statement of the paid medical leave earned by the employee during any pay period, any amounts deducted therefrom during the pay period, and the balance of the employee's paid medical leave.
§ 40.1-33.12.
Application of article.
A.
Nothing in this article shall be construed to discourage or prohibit an employer from the adoption or retention of a paid medical leave policy more generous than the provisions required by this article.
B.
Nothing in this article shall be construed to lessen the obligation of an employer to comply with a contract, collective bargaining agreement, employment benefit plan, or other agreement providing more generous paid medical leave to an employee than required by this article.
C.
This article establishes minimum requirements pertaining to paid medical leave and does not preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for greater accrual or use by employees of medical leave, whether paid or unpaid, or that extends other protections to an employee.