Legislative Update: Pending bill would expand sick leave rights for West Virginia employees

House Bill 2770, which was recently introduced into the West Virginia House of Delegates, would create the “Flexible Leave Act” to allow employees to take already earned paid leave, and to use that leave for paid time off for an illness of the employee or the employee’s “immediate family”. The bill does not give employees any additional paid leave—it only allows them to take their paid leave that they have already earned under their employers’ policies, and allows the flexibility (hence the name, “Flexible Leave Act”) to take leave that may have been intended for another purpose, such as earned vacation time, and apply it for the different purpose of their own or an immediate family member’s illness.

On January 24, 2011, Delegates Caputo, Fragale, Hatfield, Martin, and Moye introduced House Bill 2770, which is being referred to the Committee on Energy, Industry and Labor, Economic Development and Small Business then Finance. You can keep track of the progress of the bill by going to the Bill Status page and entering 2770 in the “Enter Bill Number” field. For information on the bill’s sponsors, or on any other members of the Senate, you can go to the House Members page and pick the member from a drop-down list. For those of you who are interested in finding out more about the legislative process, the Legislature has a “How a Bill Becomes Law” page.  The Legislature also has a very nice photo gallery of the Capitol Building.

According to an article in The State Journal, unions have been pressing this bill to give employees the right to take paid leave so they can take paid time off to tend to illnesses of the employees and the immediate family members of the employees. According to the note in House Bill 2770 itself, its purpose is to allow employees to use “earned leave with pay for an illness in an employee’s immediate family”.

Here is a walk-through of what the Flexible Leave Act (“the Act”), House Bill 2770, says:

  1. 21-5G-2 (1): The Act covers all private (non-governmental) employers. However, it appears the House Energy, Industry and Labor, Economic Development and Small Business voted to amend the Act to limit it to employers with 50 or more employees.
  2. 21-5G-3: The Act then applies its leave provisions only to an employer that “provides leave with pay under the terms of: (1) A collective bargaining agreement; or (2) an employment policy” (emphasis added).
  3. 21-5G-2(4): “Leave with pay” is defined to mean “any time away from work for which an  employee receives compensation. Leave with pay includes sick time, vacation time and compensatory time”
  4. So the Act deals only with “leave with pay” under a collective bargaining agreement or employment policy, and that leave with pay includes (non-exclusively) sick, vacation, and compensatory time. If the employer does not offer one of these types of leave with pay, then the Act does not apply.
  5. 21-5G-4 then sets out the new right the employee has: The employee, where the employer offers leave with pay, “may use leave with pay for his or her illness or for an illness in the employee’s immediate family”.  Section 21-5G-2(3) defines “immediate family” as a “child, spouse or parent”. An employee who uses leave under the Act must “comply with the terms” of the employer’s collective bargaining agreement or the employer’s policy (21-5G-5(c)). Thus, the employee does not get any additional leave under the Act—the employee only has leave with pay the employer is already providing, and section 21-5G-5(a) makes it clear that the employee “may only use leave with pay under this article that has been earned” (emphasis added).
  6. So the Act creates no new paid leave for employees. If the employer does not offer paid leave, then the employee has no rights under the Act. If the employer provides paid leave, the employee has the right to elect to use it for illness of the employee or the employee’s immediate family member. In essence, the Act gives the employee the right to shift the purpose of earned paid leave. As an example, if the employer offers paid vacation leave, the employee who has a sick child is entitled to use the vacation leave for the care of the child, and in taking the leave the employee must comply with the employer’s policies (21-5G-5(c)).
  7. The Act provides the right to shift paid leave to situations involving illness, and the Act says it does not affect the unpaid leave afforded by the FMLA.  The FMLA entitles a qualifying employee to 12 weeks annually of unpaid leave.
  8. 21-5G-6: The Act prohibits employers from discharging or taking other adverse action against the employee who exercises rights under the Act, or who files or participates in any  complaint under the Act.

Well that’s it. The Act does not give an employee any right to paid leave beyond what an employer is already voluntarily providing. But once an employer provides paid leave, the employee may shift the purpose from, for example, vacation time to sick time.

When I get any further news about the Flexible Leave Act (House Bill 2770), I’ll update you on this blog.

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Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
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