UNITED STATES DEPARTMENT OF LABOR
September 2016
1
What’s the Dierence? Paid Sick Leave, FMLA, and Paid Family and Medical Leave
What’s the Dierence?
Paid Sick Leave, FMLA, and Paid Family and Medical Leave
Paid sick leave, FMLA leave, and paid family and medical leave are all types of paid or unpaid time off from work, but they are distinct policies and, where enacted,
laws. Below are descriptions of each type of leave, making clear the key differences between them.
Paid Sick Leave, Executive Order 13706 (EO) Paid Sick Leave, State and Municipal Laws Family and Medical Leave Act (FMLA) Paid Family and Medical Leave (PFML)
Background
and
availability
President Obama signed the EO in September
2015. It requires companies with certain types
of contracts with the federal government
(“covered contracts”) to provide paid sick
leave, which is available for short-term health
needs and preventive care. It will apply to new
covered contracts starting January 1, 2017.
Five states (California, Connecticut,
Massachusetts, Oregon, and Vermont)
and more than two dozen cities, counties,
and towns have paid sick time laws, which
require employers in those states and cities to
allow leave for short-term health needs and
preventive care.
The FMLA is a federal law that provides job-protected,
unpaid leave from work for certain family and serious
medical reasons. It applies to many employers across
the country. It was signed by President Bill Clinton on
February 5, 1993.
Paid family leave means longer-term leave to care for
ill family members, as well as when a parent has a new
child. It exists or soon will in four states: California,
New Jersey, Rhode Island, and New York. New York’s
program will start paying benefits in 2018. Paid
medical leave means leave for self-care of your own
serious illness has been available for decades in five
states: those with paid family leave as well as Hawaii.
What else is
this policy
known as?
Paid sick leave is also known as “earned sick time,” “earned sick leave,” “paid sick time,” and “paid
sick days.”
This law is commonly known as the FMLA. Paid family leave is also known as “family caregiver
leave” or “family leave insurance.” Paid medical leave is
also known as “temporary disability insurance” (TDI) or
“short-term disability.” Paid family and medical leave
together are also referred to as “family and medical
leave insurance” (FMLI).
How does
the policy
typically
work?
Employees will earn paid sick leave hours
during the time they work on or in connection
with a covered federal contract. They will earn
one hour of leave for every 30 hours worked.
Employers have the option to provide a year’s
worth of leave up front, rather than requiring
workers to accrue it one hour at a time.
Typically, employees earn or accrue paid sick
leave based on how many hours they have
worked. For instance, a paid sick leave policy
could allow a worker to earn one hour of paid
sick leave for every 30 or 40 hours worked.
Employers are required to allow employees
to take leave for certain purposes and to pay
employees while they are using leave.
The FMLA entitles eligible employees of covered
employers to take up to 12 weeks of unpaid, job-
protected leave from work for certain medical and
family reasons, including your own or a spouse’s,
parent’s or child’s serious health condition, or for
qualifying exigencies while the employee’s spouse,
son, daughter, or parent is on covered active duty or
call to covered active duty status. The FMLA also allows
eligible employees of covered employers to take up
to 26 workweeks of FMLA leave in a “single 12-month
period” to care for a covered service member with a
serious injury or illness. During leave, employers are
not required to pay workers, but they must maintain
workers’ group health insurance under the same terms
and conditions as if the employee had not taken leave
and they are required to give employees their jobs back
when they return from leave.
PFML typically operates as an insurance program, in
which workers and/or employers pay in and workers
who need to provide caregiving are able to draw on the
policy’s benefits that provide partial wage replacement
while a worker is on leave. TDI is funded in a similar
way.
2
What’s the Dierence? Paid Sick Leave, FMLA, and Paid Family and Medical Leave
Paid Sick Leave, Executive Order 13706 (EO) Paid Sick Leave, State and Municipal Laws Family and Medical Leave Act (FMLA) Paid Family and Medical Leave (PFML)
Which
employers
have to
comply with
this law?
The EO applies to contractors that have any
of four types of federal contracts: contracts
covered by the Service Contract Act, contracts
covered by the Davis-Bacon Act, concessions
contracts, and service contracts in connection
with Federal property or lands. It also applies
to subcontractors of covered contractors if
the subcontract is also one of these types of
contracts.
While there are variations in existing paid sick
time laws, they usually apply to employers
with 15 or more employees.
The FMLA covers private sector employers with 50 or
more employees; public agencies, including a local,
state or federal government agency, regardless of
the number of employees they employ; and public or
private elementary or secondary schools, regardless of
the number of employees they employ.
Because PFML programs act as insurance and
workers typically pay into a fund that provides wage
replacement to leave-takers, there are no employer
coverage rules and no carve-outs or exemptions for
small employers.
Who can
workers
take leave
time to
care for?
Workers can take paid sick leave to care
for oneself or the employee’s child, parent,
spouse, domestic partner, or any other
individual related by blood or affinity whose
close association with the employee is the
equivalent of a family relationship (which
includes a grandparent, grandchild, brother-
or sister-in-law, fiancé or fiancée, cousin,
aunt, or uncle, as well as other people with
whom the employee has a significant personal
bond that is or is like a family relationship,
regardless of biological or legal relationship).
Details vary under different paid sick
time laws, but generally workers can care
for oneself as well as parents, children,
grandparents, and grandchildren. Some states
or towns may allow leave for more family
relationships or the equivalent of family
relationships.
Workers can take leave for the birth of a child and to
bond with the newborn child, for the placement of a
child for adoption or foster care and to bond with that
child; to care for a spouse, child or parent who has a
serious health condition; and if the employee is unable
to work because of a serious health condition. Leave
may only be used for the care of an adult child with a
serious health condition if the son or daughter is also
incapable of self-care due to disability. Under FMLA
military family leave provisions, workers may also
take leave to care for a covered servicemember with
a serious illness or injury if the worker is the spouse,
parent, child, or next of kin of the servicemember or
for certain qualifying exigencies while the employee’s
spouse, son, daughter, or parent is on covered active
duty or call to covered active duty status.
Generally, under a paid family leave program, workers
can care for a spouse, domestic partner, parent, or
child. Some states will provide benefits for caregiving
for grandparents, grandchildren, siblings, or parents-
in-law. Under TDI programs, a worker can receive
benefits only for your their serious medical problem.
Can workers
go back to
their jobs
after their
leave time?
Yes, workers can go back to their jobs: the
EO provides “job protection,” meaning
workers cannot be fired, retaliated against,
or discriminated against for asking to use or
using their paid sick leave.
Yes, workers can go back to their jobs:
the laws usually provide “job protection,”
meaning workers cannot be fired, retaliated
against, or discriminated against for using
their paid sick leave time.
Yes, upon return from FMLA leave, an employee
must be restored to his or her original job or to an
equivalent job with equivalent pay, benefits and other
terms and conditions of employment. An employee’s
use of FMLA leave cannot be counted against the
employee under a “no-fault” attendance policy or
used as a negative factor in an employment action,
such as hiring, promotions, or discipline. It is unlawful
for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise any right
provided by the FMLA.
Under TDI programs, no, there is no job protection
(however, the FMLA job protection may apply). Under
paid family leave programs, sometimes. Rhode Island
requires (and New York will require) that leave-takers
be able to return to their jobs. In California and New
Jersey, the laws don’t provide job protection, so
whether workers can return is up to their employer (or
the FMLA’s job protection may apply).
3
What’s the Dierence? Paid Sick Leave, FMLA, and Paid Family and Medical Leave
Paid Sick Leave, Executive Order 13706 (EO) Paid Sick Leave, State and Municipal Laws Family and Medical Leave Act (FMLA) Paid Family and Medical Leave (PFML)
For what
reasons can
workers use
this policy?
Paid sick leave under the EO is designed for
absences due to short-term illness or injury
and to support preventive health care for
the employee and the employee’s children
or other family members. The EO also allows
“safe time” for the employee to address the
impact of domestic violence, sexual assault,
or stalking of the employee and/or a family
member of the employee, such as the need to
attend court proceedings.
Paid sick leave is designed for absences due
to short-term illness or injury and to support
preventive health care for the employee
and the employee’s children or other family
members. Some laws also allow “safe days”
for the employee to address the impact of
domestic violence, sexual assault, or stalking
of the employee and/or a family member of
the employee, such as the need to attend
court proceedings.
Permissible reasons for leave include leave related
to pregnancy, birth, fostering, or adoption of a child
and time to bond with the child; self-care for a serious
health condition; or caregiving for a qualifying family
member (parent, spouse, son or daughter) with a
serious health condition. Workers may also take leave
to care for a covered servicemember with a serious
injury or illness or for qualifying exigencies while
the employee’s spouse, son, daughter, or parent is
on covered active duty or call to covered active duty
status.
PFML generally follows Family and Medical Leave Act
(FMLA) permissible reasons for leave: leave related
to birth, fostering, or adoption of a child; self-care
for a serious health condition; or caregiving for an
immediate family member with a serious health
condition. Paid parental – or maternity or paternity
– leave is for new parents, whereas paid family and
medical leave is intended for a greater range of events
(e.g., recovery from surgery or caregiving for an elderly
parent).
How much
time off is
allowed?
Workers can accrue up to 56 hours (the
equivalent of seven 8-hour days) of leave per
year or at a time and can carry over unused
paid sick leave from the previous year (which
does not count toward the current year’s 56-
hour accrual limit).
Workers can generally accrue between 24
and 72 hours of paid sick time per year. In
some locations, the amount of time that
may be accrued depends upon the size of the
employer.
An eligible employee may take up to 12 workweeks of
leave in a 12-month period for the birth or placement
of a child for adoption or foster care, and for bonding;
to care for a spouse, child or parent who has a serious
health condition; for the employee’s own serious
health condition; and for qualifying exigencies while
the employee’s spouse, son, daughter, or parent is
on covered active duty or call to covered active duty
status. A worker may take up to 26 workweeks of leave
during a single 12-month period to care for a covered
servicemember with a serious injury or illness.
The details vary by state, but paid family leave
programs provide 6 to 12 weeks of partially paid leave
per year, while TDI programs provide 26 to 52 weeks of
partial wage replacement.
Are workers
paid? How is
this time off
funded?
When employees use their paid sick leave,
contractors must provide workers with their
regular pay and benefits.
When eligible employees use their paid sick
time, employers are required to pay workers
their usual rate of pay.
FMLA leave is unpaid leave. However, workers
may choose to, or employers may require them to,
substitute accrued paid sick, vacation, or personal
time for FMLA leave. Substitute means that the paid
leave provided by the employer will run concurrently
with the unpaid FMLA leave. An employee’s ability
to substitute accrued paid leave is determined by the
terms and conditions of the employer’s normal leave
policies. Employers are also required to continue
paying the employer’s share of workers’ group health
insurance premiums on the same terms as if they were
not on leave.
When eligible workers take leave, they receive partial
wage reimbursement from the fund equal to a set
percentage of their pay, often capped on a weekly or
monthly basis. Workers and/or employers contribute a
very small percentage of pay to a designated fund that
pays for the benefits.
Where can
I get more
information
on the laws
that apply
to me?
The Department of Labor’s Wage and Hour
Division (WHD) is responsible for enforcing the
EO. More information is available at: http://
www.dol.gov/whd/govcontracts/eo13706/.
Check with your state, county, or municipal
government.
The Department of Labor’s Wage and Hour Division
(WHD) is responsible for enforcing the FMLA. You may
contact WHD at 1-866-487-9243 or visit the FMLA
website at: https://www.dol.gov/whd/fmla/
If you live in CA, NJ, RI, or NY, check with your state
department of labor.
