CRW • Corporate Report • Wisconsin's Business Magazine

Regardless of whether your business is located inside or outside the city of Milwaukee, here’s something that should get your full attention: A federal mandatory sick leave act could be in everyone’s future, and it’s called the Healthy Families Act (HFA).

That name should ring a bell. Massachusetts Senator Ted Kennedy first introduced the act in 2005 along with only eight co-sponsors. In short, the act provided for seven days of paid sick leave per employee per year. It was not approved four years ago, but there are a number of reasons why it is back on the table.

“One of the biggest reasons is that among the 24 co-sponsors in the 110th Congress in 2007 was then-Illinois Senator Barack Obama,” says Daniel Finerty, an attorney in Godfrey & Kahn’s Milwaukee office. “Mandatory sick leave is also among a number of items on the Obama agenda and the pro-labor agenda, so it has been getting quite a lot of attention lately.”

A modified version of the HFA was re-introduced in the House of Representatives by Connecticut Congresswoman Rosa DeLauro in mid-May; Senator Kennedy followed suit in the Senate a few days later.

“With this re-introduction, the HFA will likely receive serious consideration,” says Finerty. “If passed, President Obama will likely sign the legislation, which will create mandated sick leave on a federal level.”

There are some changes of note between the prior versions and the current version.

“In the new version, employees earn one hour of sick leave for every 30 hours worked, the same as under the Milwaukee ordinance,” says Finerty.

The first version also didn’t cover anyone who worked less than 20 hours per week. In the current version, these employees are covered and receive a prorated share of sick leave based on hours worked. The HFA would apply to any employer who employs 15 or more people in 20 or more calendar weeks each year.

The use of these accrued hours of paid sick leave is also allowed under a much broader brush than employers are used to within the existing Family and Medical Leave Act parameters.

“The HFA allows employees to use the accrued hours for an employee’s own health condition and to seek preventative care,” says Finerty. “It can also be used for the employee to assist a family member dealing with a health condition or in seeking preventative care and also allows leave for an employee to deal with domestic violence issues.”

Under the proposed act, “family member” is defined very broadly to include anyone “related by blood or affinity whose close association is the equivalent to a family relationship.”

“The language of the bill is open, and the term ‘affinity’ has not yet been defined,” notes Finerty.

The bill is still moving through Congress, and Finerty notes that it is likely revisions and changes will be made as it moves through the House and Senate.

“But the chances of the HFA becoming law, at least in some form, are a lot better than they have been in the past,” he says.

Should a local government decide to enact its own “more generous” sick leave mandate, the HFA would not supersede or preempt it. In the case of the Milwaukee sick leave mandate, should the decision striking the ordinance be overturned by an appellate court and the mandate take effect, employers with 10 or more employees would still be required to provide 72 hours of sick leave time as mandated by the local ordinance, rather than the 56 hours required by the HFA.

Just to play devil’s advocate, I asked Finerty what could happen if employers decided to simply ignore such mandates and continue on with business as usual? Don’t think it’s a crazy thought; it’s a topic that employers are talking about.

“Most likely, an employer who chooses not to follow the HFA would be looking at a lawsuit from the Department of Labor in which the DOL would likely pursue an injunction to require compliance and monetary relief for affected employees,” he predicts.

That would definitely not be business as usual … and likely far more expensive than compliance in the long run.

By Laurie Arendt

Laurie Arendt is editor of CRW. She can be reached at crweditor@crwmag.com