Why did the Legislature require paid leave?
The Legislature found that paid sick leave would provide a healthier work environment for all Vermonters. However, about half of private-sector employees—60,000—lacked paid sick leave.
These Vermonters were generally employees of Vermont small businesses.
What employers does this law cover?
Almost all employers are covered. There are some exceptions listed below. Since mainly small businesses lacked leave programs, the law affects mostly small businesses.
New employers are exempt for the first year that the business hires any employees. 21 V.S.A. § 486(a).
When did the law go into effect?
January 1, 2017. There is a one-year grace period for employers with five or less employees. These very small employers have until January 1, 2018 to comply with the use of leave, but not the accrual.
What must an employer do?
Employers must accrue paid sick leave for all employees--at least one hour of sick leave for every 52 hours an employee actually works. The accrual must begin by January 1, 2017. See Footnote 1.
Okay, so there are 2080 hours per year when some works a 40-hour work week.
Yes, and 2080 ÷ 52 = 40 hours that a person would earn in an average year with no vacation. So the law anticipates some sick leave accrual for Vermonters working even more hours than a standard work-year.
When can an employee use the accrued sick leave?
For this year and 2018, an employee can use up to 24 hours of earned sick time a year. Starting in 2019, an employee can use up to 40 hours per year.
However, an employer may embargo the use of sick leave until January 1, 2018, or one year after the employee is first employed.
What can the sick leave be used for?
The sick leave can be used for the employee, or
- grandparent, or
- step-parent of the employee.
The sick leave can also be used for sickness (see Footnote 2) or injury of help any of the above, and to:
- Obtain health care or long-term care
- Travel to an appointment related to the above
- Address the effects of domestic violence or stalking.
How much does an employer have to pay when sick leave is used?
The normal hourly wage rate, which better be at least the minimum wage. See Footnote 3. If less than a full workday, then the employee can be charged as sick leave only for whatever time is actually used.
What does the law say about unused, accrued paid sick leave?
Sick leave carries over from year to year. However, the limitations on use of leave (24 hours per year until 2018) still apply. Obviously, the employer can allow more use of leave than the minimums. See Footnote 4. Alternatively, an employer can pay the employee for unused sick time.
If the employer offers the full possible sick leave to employees at the beginning of the annual period (before the leave is actually earned), then the employer does not need to carry-over unused leave from the previous year. 21 V.S.A. § 484(a)(2).
What if the employee leaves? See Footnote 5. Must the employer pay for unused sick leave?
No … unless the employer had agreed to pay for unused sick leave.
Must an employee use sick leave when sick?
If the employer requires use of sick leave, then the employee must use sick leave. 21 V.S.A. § 483(f).
However, the employer and employee can agree on alternatives, if they both prefer.
They can agree that the employee:
- simply to make up the lost time, or
- trade hours so that another employee works during the sick time, and the employee with the sick time makes up the work for the other employee.
However, these options are simply options available by agreement.
Can the employer require the employee to find a replacement worker during sick leave absences?
What happens if I fail to follow the paid leave law?
The Act makes an employer liable for damages. There is a criminal penalty for fraud.
If the failure is part of a larger claim—such as disability discrimination—it is certainly possible that the failure would be used as evidence of such discrimination.
Are there exceptions?
There are a several exceptions:
First, people who are exempt:
- Children (that is, people under age 18).
- Part-time and part-year employees in two situations:
- Who work an average of less than 18 hours a week—averaged over a year.
- Who work 20 weeks or less in a 12-month period if the job was never scheduled to last no longer.
- Executive officers, managers or members specifically approved by the Commissioner of Labor (21 V.S.A. § 601(14)(H)).
- Sole proprietors and partner-owner of an unincorporated business who qualifies a 7-part test, under 9 V.S.A. § 601(14)(F) (See the next question.)
What is the 7-part test for sole proprietors and partner-owners?
The exemption for sole proprietors and partner-owners applies only to those who meet a 7-part test. (This test generally reflects concerns regarding misclassification.)
Here is the seven-part test:
1. The work is distinct and separate from that of the person with whom the individual contracts.
2. The individual controls the means and manner of the work.
3. The individual acts as an independent business.
4. The individual works for the general public
5. The individual does not perform work exclusively for or with another person.
6. The individual is not an employee for purposes of income or employment taxation with regard to the work performed.
7. The individual’s services are:
- performed under a written agreement, and
- the agreement explicitly states that the individual is not considered to be an employee under this chapter, is working independently, has no employees, and has not contracted with other independent contractors, and
- the agreement includes information regarding the right of the individual to purchase workers' compensation insurance coverage and the individual's election not to purchase that coverage. See 9 V.S.A. § 601(14)(F).
Second, certain employers are exempt, often with qualification.:
- The Federal government (because of preemption under the U.S. Constitution).
- The State of Vermont (because there are statutory benefits and collective bargaining agreements). Temporary employees working for the State do get the benefits of the Act.
- Health-care facilities under 18 V.S.A. § 9432(8) or 33 V.S.A. § 7102(2) if the employee works on a per diem or intermittent basis.
- School districts, supervisory districts or supervisory unions meeting
Published: May 16, 2017 | Disclaimer
1 There is an exemption for employees not covered by the Fair Labor Standards Act, 29 U.S.C. § 213(a)(1). Those exempt employees may be limited to accruing sick leave on the first 40 hours per week. 21 V.S.A. § 482(c)(2).
2 The sick leave can also be used to care for a family member if a business or school is closed for public health or safety reasons.
3 The minimum wage is set at 21 V.S.A. § 384. See 21 V.S.A. § 482(d).
4 9 V.S.A. § 483(d).
5 If the employee is then rehired, then he or she can use sick leave immediately, but does not retain sick leave accrued before the break, unless the employer agrees. 21 V.S.A. § 483(f).