Vermont’s Sick Leave Law: Crash Course for Businesses
Overview of Vermont’s Sick Leave Law
Employees in Vermont just started earning sick leave on January 1, 2017. As the fifth state to mandate statewide sick leave, Vermont joined a growing list of states with sick leave laws. Vermont Governor Peter Shumlin signed the bill into law March 9, 2016. Prior to Vermont, only California, Connecticut, Massachusetts, and Oregon had enacted sick leave protection laws. Since the Vermont law, more state have enacted or voted into law sick leave laws including Arizona.
Vermont’s Earned Sick Time (EST) law has a phase in period of two years, which provides up to 24 hours of sick leave to Vermont employees. On January 1, 2019, employees will be able to earn up to 40 hours of sick leave in a 12 month period. Eligible employees can earn one hour of paid sick leave for every 52 hours worked. Employees are paid at the same rate as their worked hours. If their pay rate changes, then employees must be compensated for used sick time at their average hourly pay rate.
Small employers who employ 5 or fewer employees who work an average of at least 30 hours a week or more during the year are subject to a delayed implementation schedule for earned sick time. The law does not specifically address small employers who employ fewer than 5 employees who work more than 18 hours, but average less than 30 hours a week throughout the year.
Important Dates for Compliance
All employers who have 6 or more employees are currently obligated under the sick leave law. Employees can start accruing up to 24 hours of sick leave a year. Small businesses, those with 5 or less employees have one extra year before they have to start offering sick leave to their employees on January 1, 2018. Then on January 1, 2019, employers must start allowing employees to earn up to 40 hours of sick leave. Small and Large employers are allowed to impose a 1 year waiting period before employees can begin to use their accrued sick leave. This applies to all employees that are employed as of January 1, 2017. New or future employees can also be subject to a 1 year waiting period before using accrued sick time. Employees start accruing earned sick time on the first date of employment, but can be restricted by the employe to use the accrued sick time for a period up to 12 months after employment starts.
|January 1, 2017
|* Large employers (6+ employees) must allow eligible employees to accrue up to 24 hours of paid leave.
|January 1, 2018
|* Small Employers (5 or less employees) must allow eligible employees to accrue
* Large Employers who have imposed a 1 year waiting period must allow employees to start using accrued sick leave
|January 1, 2019
|*Large Employers must allow eligible employees to accrue up to 40 hours of paid leave
* Small employees must allow employees to start using accrued sick leave
Grace Period for New Businesses
New businesses starting or operating in Vermont will have a 1 year grace period before they are required to start providing sick leave to employees. It is important to note that it is the employer’s responsibility to prove that the infraction or alleged violation occurred less than 1 year after the first employee was hired. Therefore, it is vital for new businesses to maintain good and accurate records. It is the business’s, not the state’s responsibility to prove the 1 year grace period.
Covered Employees under Earned Sick Time
All employees who work at least 18 hours a week in Vermont are covered under the new law. This includes part time, full time, and seasonal employees (as long as they work 20 or more weeks, approx 5 months, in the year for the employs).
Exclusions to Earned Sick Time
There are some exclusions to Earned Sick Time which include minors and part time employees, those who doesn’t work an average of at least 18 hours in a week throughout the year. Federal Government employees are also exempt and are highly skilled employees employed by the state, including court employees and state legislature employees.
The law also excludes employees who work less than 20 week for an employer in a job that was scheduled to last 20 weeks or less for an employer to supplement the employer’s workforce. In other words, planned temporary employees are excluded from the law. This includes employees hired on a temporary basis to substitute for leaves of absences, temporary skill shortages, seasonal workloads, and special assignments or projects. Health Care employees who work on a per diem or an intermittent basis are excluded. Substitute Teachers and guest workers employed through a Federal Work Visa Program do not earn sick time. Individual who work on a per diem or intermittent basis, who work when they are available to work and are under no obligation to work for the employer and who have no expectation of continued work for the employer are also exempt.
Sole Proprietors or Partners of an unincorporated business are excluded from earned sick time, including independent contractors. Also excluded are executive officers, managers, or members of a corporation or limited liability company which has an approved exception from the worker’s compensation provisions, received from the state liability board.
- Part Time Employee’s (<18 average hours worked a week during a year)
- Federal Government Employees
- Highly Skilled State Employees (legislature and court employees)
- Temporary Employees employed less than 20 weeks in a year for the employer
- Health Care Employees who work on a per diem basis
- Substitute Teachers
- Guest Workers employed through a Federal Work Visa Program
- Sole Proprietors, Partners (Independent Contractors) of an unincorporated business
- Executives, managers, members of a business with an exception from workers compensation provisions.
- Per Diem or Intermittent workers (casual laborers) who work when they are available and who are under no obligation to work for the employer and who have no expectation of continuing work.
Vermont’s law does not override any collective bargaining agreements that were entered into before January 1, 2017. Employers are not required to provide additional sick leave above what is already in the collective bargaining agreements, and they cannot diminish the awarded sick time in the collective bargaining agreements that is more generous than the law. Additionally, Vermont’s law does not allow a future collective bargaining agreement to waive the requirements of earned sick time for employees. This is different than many other state’s sick leave laws.
Allowable Uses for Earned Sick (and Safe) Time Leave
Sick leave can be used for the employee or the employee’s family member’s sick time. Employees can use sick time when they, or a family member, are ill or injured, require a medical diagnosis, preventative, routine, or therapeutic care. They can also use it to accompany a spouse, parent, including parent-in-law, or grandparent to an appointment related to their long term care. Employees can also use it for themselves or a family member who needs to obtain legal or medical care or counseling as a result of domestic violence, sexual assault, or stalking. They can also use it to relocate or to help a family member to relocate due to domestic violence, sexual assault or stalking. Lastly, employees can use earned sick time to help care for a family member who has had a school, care facility, or place of employment closed due to a public health or safety reason.
- Illness or injury
- Medical diagnosis, preventative care, routine or therapeutic care
- Appointment related to long term care
- Legal counseling or medical care that results from domestic violence, sexual assault or stalking.
- Including relocation
- When a place of employment, school, or care facility is closed due to a public health or safety reason.
Family Member Definitions
Family member relationships allowed in Vermont’s Earned Sick Time Law include the employee’s spouse, child, foster child, parent, parent in-law, grandparent, brother, sister, and grandchild. Additionally the Vermont Earned Sick Time Law does not match the language of the Vermont Parental and Family Leave Act (VPFLA) which includes a civil union partner, step child and ward of the employee. Neither does the Vermont law address in “parentis loco” relationship, which is addressed by other state’s sick leave laws.
Accrual of Earned Sick Time
Sick leave is accrued at the rate of 1 hour of earned sick leave for every 52 hours worked. Employees who are considered exempt employees under the FLSA laws are considered to work a standard 40 hour week for the purposes of accrual. That means that employers are not required to allow overtime hours to count toward earned sick time. For the first two years of the law, from January 1, 2017 to December 31, 2018, employers can limit the amount of accrued sick leave to a maximum of 24 hours in a 12 month period. Employers are also allowed to restrict usage of sick leave for the first 12 months. Employers who choose to employ a waiting period must allow employees to start using sick leave on January 1, 2018. On January 1, 2019, employers must allow employees to start accruing up to 40 hours of sick leave in a 12 month period. The law does not prohibit employers from offering a more generous sick leave policy than is required.
Sick Leave Bank and Front loading
Employers are required to roll over accrued, but unused sick leave to the following year. If an employee’s accrues 40 hours of sick leave, but only uses 30 hours, then the remaining 10 hours must be rolled to the following year. Even when employees roll over hours, the employer can still cap the annual usage to 40 hours of sick leave usage in a year. That means that an employee who accrues 40 unused hours in year 1 can roll the full 40 hours to year 2. In year 2 that same employee can accrue another 40 hours of sick leave, leaving a total of 80 hours of accrued unused sick leave in year 2. During year 2, that employee can still be restricted to using only 40 hours of sick leave during the year.
Employers who want to avoid rolling over unused accrued sick time hours can can choose to pay out the accrued, but unused sick leave at the end of the year. Additionally, the carry-over requirements can be waived by front loading 40 hours of sick leave at the beginning of the year. Front Loaded sick time does not roll over to the following year.
Rehiring employees within 12 months & the Waiting Period for Sick Time Usage.
Employees do not retain a sick leave back at the termination of employment. When employment stops, employers are not required to pay out accrued, and unused sick time. However, if the employee was discharged by the employer and then is rehired with the same employer within 12 months and had previously met the 12 month waiting period, the employee doesn’t have another waiting period to pass through. Even so, the employer is not required to reinstate previously accrued and unused sick time to the employee unless there was a prior agreement to do so. Employees who voluntarily leave the employer after meeting the 12 month waiting period and who are rehired within 12 months do not get their waiting period waived. Those employees are subject to another 12 month waiting period.
Coordinating with Paid Time Off Policies
Employers are allowed to offer Paid Time Off (PTO) that is at least as generous as the state law provides and which allows employees to take time off for the purposes of Earned Sick Leave. Employers who provide PTO do not have to carry over unused PTO to the following year. Neither does the employer have to provide additional PTO if the employee chooses to use the PTO for purposes other than sick leave purposes, but they could have used the PTO for the same purposes allowed for in the Vermont’s Earned Sick Time Law.
Sick leave must be used in the smallest time increments that the employer’s payroll system allows for absences or that the employers paid time off policy permits. However employers don’t have to allow smaller increments than that of at least 1 hour increments.
Reasonable Documentation and Notification of Sick Leave Usage
Employees cannot be required to find a replacement for them while using earned sick time. However, the employer can require the employee to make reasonable efforts to schedule planned sick time outside of regular working hours or to provide the employer with reasonable notice of planned sick time usage.
Employers can choose how to have employees earn sick time. Employees can earn sick time each pay period or on a quarterly basis. If the employee earns sick time on a quarterly basis, then the employee must still be able to use the earned sick time during the quarter they earn it. Employers can also award earned sick leave at the beginning of the year.
The Vermont Earned Sick Time Law does not address whether or not an employer can require documentation that sick leave was used in accordance with the law. Most other states allow for varying types of documentation when sick leave is used for 3 or more consecutive days. Employers who have a verification policy will need to wait for the Vermont Department of Labor to issue administrative policies regarding verification.
Businesses are prohibited against retaliating against any employee who attempts to use earned sick leave or to assert their rights under the law. Employees who complain about a violation of the law or who assist the Vermont Department of Labor in an investigation are also protected from retaliation.
Fines and Remedies provided by the Sick and Safe Time Ordinance
Violations of Vermont’s Sick Leave Time Law is punishable by fines up to $5,000. If the business is a corporation, then the officers of the corporation that are in charge of payments are also personally liable to the employee for actual wages due. In addition civil acts can be brought against the employer for restitution including, wages and benefits, reinstatement, costs, attorney fees, and other appropriate relief.
Employees may file a complaint of a violation for up to 2 years with the Vermont Department of Labor. The Department is responsible for enforcing sick leave and will investigate, mediate, and settle the violation. When the violation is willful, the employer will be subject to pay back wages at a rate that is double the amount of the unpaid wages. Half of that amount goes to the Department to cover administrative and collection costs.
Notification and Records
The Vermont Sick Leave requires that employers post notice of the Earned Sick Time Law in a conspicuous place at the employer’s place of business. New employees must also receive notice of the law upon hire. The Vermont law doesn’t specifically define the amount of time that employers should maintain records of employee sick leave accrual and usage. Neither does it provide for any specifics of the information contained within the records. However, many other states and counties have defined the minimum retention period as three years. Businesses who have employees across multiple states will want to ensure policies that maintain minimum record retention and information required. Most state with sick leave laws require that employers maintain a record of hours worked, sick leave accrual and usage. Other states require employee’s address and phone number, documentation that the sick leave policy was shared with the employee, and sick leave verification to be maintained of file.
Let SwipeClock Help
Businesses who have employees across various states, including Vermont may have to comply with conflicting City and State ordinances defining Sick leave accrual and usage laws. Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Leave Medical Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws. Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
Written by Annemaria Duran. Last updated January 16, 2017
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