Government Contracts Update – New Paid Sick Leave Regulations
By Robert J. Barry, Randy C. Sparks Jr., Government Contracts & Construction
New Paid Sick Leave Regulations
The Department of Labor has released its final regulations implementing Executive Order 13706 (Paid Sick Leave), which will go into effect on most new government contracts with solicitations issued after January 1, 2017. According to the White House, these regulations will give additional paid sick leave to 1.15 million people working on federal contracts, including nearly 600,000 employees who do not currently have any paid sick leave.
The regulations mandate that workers must earn no less than one hour of paid sick leave for every 30 hours worked on (or in connection with) a covered federal contract, up to 56 hours in a year. This includes employees of subcontractors working on federal contracts. In addition to their own illness, workers can use such leave for preventive care or other health care needs; to care for a family member or loved one who is ill, seeking preventive care, or otherwise in need of care; and for absences resulting from domestic violence, sexual assault, or stalking. Employers may not retaliate against employees for using paid sick leave or require them to find replacements in order to take it.
Importantly for those government contractor employers already offering paid time off that can be used for sickness, the paid sick leave requirements need not have any effect on a contractors voluntary paid time off policy, whether provided pursuant to a collective bargaining agreement or otherwise. A contractors existing paid time off policy (if provided in addition to the fulfillment of Service Contract Act or Davis-Bacon Act obligations, if applicable) will satisfy the requirements of the regulations if the paid time off:
- Is made available to all employees covered by the regulations;
- Can be used for at least all of the same purposes as paid sick leave;
- Is provided in a manner and an amount sufficient to comply with the rules and restrictions regarding the accrual of paid sick leave described in the regulations;
- Is provided pursuant to policies sufficient to comply with the rules and restrictions regarding use of paid sick leave, requests for leave, and certification and documentation, at least with respect to any paid time off used for the required purposes; and
- Is protected by the prohibitions against interference, discrimination, record-keeping violations, and waiver of rights described in the regulations, at least with respect to any paid time off used for the required purposes.
A contractor satisfying the requirements of the regulations with a paid time off policy that provides more than 56 hours of paid leave per accrual year may choose to either provide all paid time off as compliant with the regulations or track, and make and maintain records reflecting, the amount of paid time off an employee uses for the purposes described above, in which case the contractor need only provide, for each accrual year, up to 56 hours of paid time off the employee requests to use for such purposes set forth above.
Beginning with solicitations on or after January 1, 2017, contractors should expect to see the following clause incorporated into their contracts:
(a) Executive Order 13706
This contract is subject to Executive Order 13706, the regulations issued by the Secretary of Labor in 29 CFR part 13 pursuant to the Executive Order, and the following provisions.
(b) Paid Sick Leave
(1) The contractor shall permit each employee (as defined in 29 CFR 13.2) engaged in the performance of this contract by the prime contractor or any subcontractor, regardless of any contractual relationship that may be alleged to exist between the contractor and employee, to earn not less than 1 hour of paid sick leave for every 30 hours worked. The contractor shall additionally allow accrual and use of paid sick leave as required by Executive Order 13706 and 29 CFR part 13. The contractor shall in particular comply with the accrual, use, and other requirements set forth in 29 CFR 13.5 and 13.6, which are incorporated by reference in this contract.
(2) The contractor shall provide paid sick leave to all employees when due free and clear and without subsequent deduction (except as otherwise provided by 29 CFR 13.24), rebate, or kickback on any account. The contractor shall provide pay and benefits for paid sick leave used no later than one pay period following the end of the regular pay period in which the paid sick leave was taken.
(3) The prime contractor and any upper-tier subcontractor shall be responsible for the compliance by any subcontractor or lower-tier subcontractor with the requirements of Executive Order 13706, 29 CFR part 13, and this clause.
While the above is a general outline of the new paid sick leave entitlement, the regulations include many detailed provisions on the timing, carryover, record-keeping and enforcement of the new entitlement, all of which may be found at https://federalregister.gov/d/2016-22964. Please contact Scott Kezman (757) 624.3008(firstname.lastname@example.org); Randy Sparks (804) 771.5709 (email@example.com) or Bob Barry (757) 624.3268 (firstname.lastname@example.org) with any compliance questions or concerns.
The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2023.