What you Should Know About Vermont's Earned Sick Leave Law

Posted on 7/7/2016 by Alexandra H. Clauss

 What you Should Know About Vermont's Earned Sick Leave Law

VERMONT’S EARNED SICK LEAVE LAW:  IN-DEPTH VIEW

By:  Alexandra H. Clauss, Esq.

 From Vermont Business Magazine: (originally published on June 14, 2016)

Vermont recently became the fifth state to pass a law requiring paid sick leave for employees. All employers doing business in or operating in the State of Vermont are covered by this law, and because each state’s paid sick leave mandate is different, we provide this summary specific to Vermont’s earned sick leave law (21 V.S.A. §§ 481-486).

1:  When do employers have to start complying with this law?  Are there any exceptions for small businesses? Employers with more than five employees who work on average 30 or more hours per week must start providing earned sick time on January 1, 2017.  Employers with five or fewer employees who are employed for an average of 30 or more hours per week, must start providing earned sick time on January 1, 2018. 

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

3:  How do employees earn sick time? There are several options for employers to provide their employees earned sick time, and employers can choose which method to use: (i) employees can accrue earned sick time each pay period; (ii) employees can accrue earned sick time on a quarterly basis, provided that an employee may use earned sick time as it accrues during each quarter; or (iii) employers can give employees their full amount of accrual at the beginning of each annual period.

4:  What can earned sick time be used for? An employee can use earned sick time for any of the following reasons: (i) the employee is ill or injured; (ii) the employee obtains professional diagnostic, preventive, routine, or therapeutic health care; (iii) the employee cares for a sick or injured parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, including helping that individual obtain diagnostic, preventive, routine, or therapeutic health treatment, or accompanying the employee’s parent, grandparent, spouse, or parent-in-law to an appointment related to his or her long-term care; (iv) the employee is arranging for social or legal services or obtaining medical care or counseling for the employee or for the employee’s parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, who is a victim of domestic violence, sexual assault, or stalking or who is relocating as the result of domestic violence, sexual assault, or stalking; (v) the employee cares for a parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, because the school or business where that individual is normally located during the employee’s workday is closed for public health or safety reasons.

5:  How much earned sick time must employees accrue? Covered employees must accrue at least one hour of earned sick time for every 52 hours worked. All hours actually worked by non-exempt employees will count towards the accrual of earned sick time.  However, an employer can limit the number of hours in a workweek that will count towards the accrual of earned sick time for exempt employees to 40 hours.  Regardless of the number of hours worked by an exempt or non-exempt employee, employers can limit the total amount of earned sick time an employee can accrue to 24 hours in a 12-month period during 2017 and 2018.  In 2019 and thereafter, employers can limit the total amount of earned sick time an employee can accrue to 40 hours in a 12-month period. 

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

7:  Must accrued but unused sick time carry over to the next year?  Earned sick time that remains unused at the end of every annual period is carried over to the next annual period. However, carry-over is not required if an employer offers a paid time off policy and provides the employee with access to their full accrual of earned sick time at the beginning of each annual period.  Also, an employer, at its discretion, can pay out accrued but unused earned sick time at the end of an annual period, and then the amount of earned time for which the employee was compensated would not carry over. 

8:  Do employers have to pay out earned but unused sick time at separation from employment? No.

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

10:  If an employee uses earned sick time, may the employer require the employee to find a replacement for their shift? No.  An employer can never require an employee to find a replacement. 

11:  Will employers have any new posting requirements? Yes, employers will be required to post a notice and to notify employees of their rights to earned sick time at the time of the employee’s hire. The notice poster is not yet available, and employers should monitor the Vermont Department of Labor’s website for its availability.

12:  What if an employer already offers some form of paid time off to its employees? An employer will be in compliance with the earned sick leave provisions if it offers paid time off that employees may use for the reasons set forth in #4, so long as the paid time off accrues and may be used at a rate that is equal or greater to the rate in #5.  If an employer provides an employee with the full amount of paid time off at the beginning of each annual period, carry-over in #7 does not apply.  Nothing prevents an employer from providing paid time off that is more generous than the earned sick time provided in the law.  If employees can use some form of “paid time off” for the same purposes and with the same rights as they would be able to use earned sick time under Vermont’s law, an employer does not need to adopt a new or separate earned sick leave policy.  Employers who already offer paid time off should review and revise existing policies for compliance with all of the provisions of Vermont’s earned sick time law prior to its effective date. 

13:  What else should I know about the earned sick time law? The law protects employees from discharge and retaliation for lodging a complaint of a violation of the earned sick time provisions, cooperating with the Vermont Commissioner of Labor in an investigation of a violation, or if the employer believes the employee may lodge a complaint or cooperate in an investigation of a violation.  Employers who violate provisions on earned sick time will be subject to the same penalties as those for nonpayment of wages and benefits under Vermont law.  There are certain questions the law does not answer, such as whether employers can require documentation confirming the employee’s need to use earned sick time.  Employers can monitor the Vermont Department of Labor’s website for the issuance of administrative regulations to clarify its position for enforcement of the earned sick leave law.   

Alexandra Clauss blends litigation experience with a deep understanding of employment law issues to provide valued counsel to corporate clients of Primmer Piper Eggleston & Cramer PC. She regularly advises clients on compliance with state and federal employment laws, provides guidance on a complete range of employment issues, and reviews and prepares employment documents. She is a frequent speaker on employment law.  She can be reached at 802 864-0880 or aclauss@primmer.com.