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.

Drew M. Capuder
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