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©). 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©).
  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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