Comparing SB 824 → AB 1522 — Employment: paid sick days.

Struck = only in SB 824 · added = only in AB 1522.

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SESSION history | hilite | pdf | print version 17105057D SENATE BILL NO.
AB1522:v89#DOCUMENTBill Start 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;
1522 CHAPTER 317 An act to amend Section 2810.5 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.
[ Approved by Governor  September 10, 2014.
Be it enacted by the General Assembly of Virginia:
Filed with Secretary of State  September 10, 2014.
1.
] LEGISLATIVE COUNSEL'S DIGESTAB 1522, Gonzalez.
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:
Employment:
Article 2.1.
paid sick days.Existing law authorizes employers to provide their employees paid sick leave.This bill would enact the Healthy Workplaces, Healthy Families Act of 2014 to provide that an employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the commencement of employment is entitled to paid sick days for prescribed purposes, to be accrued at a rate of no less than one hour for every 30 hours worked.
Paid Medical Leave.
An employee would be entitled to use accrued sick days beginning on the 90th day of employment.
§ 40.1-33.1.
The bill would authorize an employer to limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment.
Definitions.
The bill would prohibit an employer from discriminating or retaliating against an employee who requests paid sick days.
As used in this article, unless the context requires a different meaning:
The bill would require employers to satisfy specified posting and notice and recordkeeping requirements.
"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 define terms for those purposes.The bill would require the Labor Commissioner to enforce these requirements, including the investigation, mitigation, and relief of violations of these requirements.
"Employer" does not include any state, local, or regional governmental agency or institution.
The bill would authorize the Labor Commissioner to impose specified administrative fines for violations and would authorize the commissioner or the Attorney General to recover specified civil penalties against an offender who violated these provisions on behalf of the aggrieved, as well as attorney’s fees, costs, and interest.The bill would not apply to certain categories of employees that meet specified requirements.Digest Key Vote:
"Family member" means any of the following:
MAJORITY   Appropriation:
1.
NO   Fiscal Committee:
A child, which for purposes of this article means a biological, adopted, or foster child;
YES   Local Program:
a stepchild;
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.
a ward;
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.
or a child to whom the employee stands in loco parentis.
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.
This definition of a child is applicable regardless of age or dependency status;
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.
2.
It impacts productivity, effectiveness, absenteeism, and employee turnover in 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;
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.
3.
Studies show that up to one-half of domestic violence victims experience job loss.
A spouse;
Forty percent reported on-the-job harassment.
4.
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.
A grandparent;
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.
5.
3. Article 1.5 (commencing with Section 245) is added to Chapter 1 of Part 1 of Division 2 of the Labor Code, to read:
A grandchild;
Article  1.5. Paid Sick Days245. (a) This article shall be known and may be cited as the Healthy Workplaces, Healthy Families Act of 2014.(b) The provisions of this article are in addition to and independent of any other rights, remedies, or procedures available under any other law and do not diminish, alter, or negate any other legal rights, remedies, or procedures available to an aggrieved person.245.5. As used in this article:(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 either (A) was entered into before January 1, 2015, or (B) expressly waives the requirements of this article in clear and unambiguous terms.
or 6.
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.(3) A provider of in-home supportive services under Section 14132.95, 14132.952, or 14132.956 of, or Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of, the Welfare and Institutions Code.(4) An individual employed by an air carrier as a flight deck or cabin crew member that is subject to the provisions of Title II of the federal Railway Labor Act (45 U.S.C.
A sibling.
181 et seq.), provided that the individual is provided with compensated time off equal to or exceeding the amount established in paragraph (1) of subdivision (b) of Section 246.(b) “Employer” means any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, and municipalities.(c) “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.
"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.
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.(d) “Health care provider” has the same meaning as defined in paragraph (6) of subdivision (c) of Section 12945.2 of the Government Code.(e) “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 246.5.246. (a) An employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the commencement of employment 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 later.(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 shall 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 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 year of employment.
"Health care provider" has the same meaning ascribed to the term in § 38.2-3438.
However, an employer may limit an employee’s use of paid sick days to 24 hours or three days in each year of employment.
"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.
This section shall be satisfied and no accrual or carry over is required if the full amount of leave is received at the beginning of each year, in accordance with subdivision (e).(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, the employer makes available an amount of leave that may be used for the same purposes and under the same conditions as specified in this section, and the policy does either of the following:(1) Satisfies the accrual, carry over, and use requirements of this section.(2) Provides no less than 24 hours or three days of paid sick leave, or equivalent paid leave or paid time off, for employee use for each year of employment or calendar year or 12-month basis.(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 from the date of separation, previously accrued and unused paid sick days shall be reinstated.
"Paid medical leave" means time off from work that is provided by an employer to an employee pursuant to § 40.1-33.3.
The employee shall be entitled to use those previously accrued and unused 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.(h) An employer shall provide an employee with written notice that sets forth the amount of paid sick leave available, or paid time off leave an employer provides in lieu of sick leave, for use on either the employee’s itemized wage statement described in Section 226 or in a separate writing provided on the designated pay date with the employee’s payment of wages.
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"Pay period" means the regular pay period established by the employer in accordance with subsection A of § 40.1-29.
The penalties described in this article for a violation of this subdivision shall be in lieu of the penalties for a violation of Section 226.(i) An employer has no obligation under this section to allow an employee’s total accrual of paid sick leave to exceed 48 hours or 6 days, provided that an employee’s rights to accrue and use paid sick leave under this section are not otherwise limited.(j) An employee may determine how much paid sick leave he or she needs to use, provided that an employer may set a reasonable minimum increment, not to exceed two hours, for the use of paid sick leave.(k) The rate of pay shall be the employee’s hourly wage.
§ 40.1-33.2.
If the employee in the 90 days of employment before taking accrued sick leave had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay shall be calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.(l) If the need for paid sick leave is foreseeable, the employee shall provide reasonable advance notification.
Entitlement to paid medical leave.
If the need for paid sick leave is unforeseeable, the employee shall provide notice of the need for the leave as soon as practicable.(m) An employer shall provide payment for sick leave taken by an employee no later than the payday for the next regular payroll period after the sick leave was taken.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, sexual assault, or stalking, 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 accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or 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 accrued sick days, discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against an employee within 30 days of any of the following:(A) The filing of a complaint by the employee with the Labor Commissioner or 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) In each workplace of the employer, the employer shall display a poster in a conspicuous place containing all the information specified in subdivision (b).
Every employer shall provide to its employees paid medical leave as provided in this article.
The Labor Commissioner shall create a poster containing this information and make it available to employers.(b) The poster shall state all of the following:(1) An employee is entitled to accrue, request, and use paid sick days.(2) The amount of 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 with the Labor Commissioner against an employer who retaliates or discriminates against the employee.(c) An employer who willfully violates the 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 three years records documenting the hours worked and paid sick days accrued and used by an employee, and shall allow the Labor Commissioner to access these records pursuant to the requirements set forth in Section 1174.
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.
An employer shall make these records available to an employee in the same manner as described in Section 226.
§ 40.1-33.3.
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.248.5. (a) The Labor Commissioner shall 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) (1) 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.(2) 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, but not to exceed an aggregate penalty of four thousand dollars ($4,000), shall be included in the administrative penalty.(3) 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, not to exceed an aggregate penalty of four thousand dollars ($4,000).(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.
Accrual and use of paid medical leave.
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.(d) An employee or other person may report to the Labor Commissioner a suspected violation of this article.
A.
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.
An employer shall provide paid medical leave to each employee who satisfies the minimum work requirement for a pay period.
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 or the Attorney General 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 collect legal or equitable relief on behalf of the aggrieved as may be appropriate to remedy the violation, including reinstatement, backpay, the payment of sick days unlawfully withheld, the payment of an additional sum, not to exceed an aggregate penalty of four thousand dollars ($4,000), 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;
The duty to provide paid medical leave shall start with the first pay period during which an employee satisfied the minimum work requirement.
or two hundred fifty dollars ($250), whichever amount is greater;
Paid medical leave shall be provided to such employees at the following rates:
and reinstatement in employment or injunctive relief;
1.
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.(h) An employer shall not be assessed any penalty or liquidated damages under this article due to an isolated and unintentional payroll error or written notice error that is a clerical or an inadvertent mistake regarding the accrual or available use of paid sick leave.
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 reviewing for compliance with this section, the factfinder may consider as a relevant factor whether the employer, prior to an alleged violation, has adopted and is in compliance with a set of policies, procedures, and practices that fully comply with this section.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.
and 2.
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.SEC.
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.
4. Section 2810.5 of the Labor Code is amended to read:2810.5. (a) (1) At the time of hiring, an employer shall provide to each employee a written notice, in the language the employer normally uses to communicate employment-related information to the employee, containing the following information:(A) The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable.(B) Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances.(C) The regular payday designated by the employer in accordance with the requirements of this code.(D) The name of the employer, including any “doing business as” names used by the employer.(E) The physical address of the employer’s main office or principal place of business, and a mailing address, if different.(F) The telephone number of the employer.(G) The name, address, and telephone number of the employer’s workers’ compensation insurance carrier.(H) That an employee:
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.
may accrue and use sick leave;
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.
has a right to request and use accrued paid sick leave;
B.
may not be terminated or retaliated against for using or requesting the use of accrued paid sick leave;
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 has the right to file a complaint against an employer who retaliates.(I) Any other information the Labor Commissioner deems material and necessary.(2) The Labor Commissioner shall prepare a template that complies with the requirements of paragraph (1).
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.
The template shall be made available to employers in such manner as determined by the Labor Commissioner.(3) If the employer is a temporary services employer, as defined in Section 201.3, the notice described in paragraph (1) must also include the name, the physical address of the main office, the mailing address if different from the physical address of the main office, and the telephone number of the legal entity for whom the employee will perform work, and any other information the Labor Commissioner deems material and necessary.
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.
The requirements of this paragraph do not apply to a security services company that is licensed by the Department of Consumer Affairs and that solely provides security services.(b) An employer shall notify his or her employees in writing of any changes to the information set forth in the notice within seven calendar days after the time of the changes, unless one of the following applies:(1) All changes are reflected on a timely wage statement furnished in accordance with Section 226.(2) Notice of all changes is provided in another writing required by law within seven days of the changes.(c) For purposes of this section, “employee” does not include any of the following:(1) An employee directly employed by the state or any political subdivision thereof, including any city, county, city and county, or special district.(2) An employee who is exempt from the payment of overtime wages by statute or the wage orders of the Industrial Welfare Commission.(3) An employee who is covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employee, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage.
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.