H                                                                                                                                                    1






Short Title:     Establish Paid Sick Days.



Representatives Adams, Ross, Coleman, Weiss (Primary Sponsors);  Alexander, Allen, Cotham, Faison, Womble, and Wray.

Referred to:

State Personnel, if favorable, Appropriations.

April 19, 2007


AN ACT to establish paid sick days to ensure all employees in north carolina can address their own health needs and the health needs of their families.

Whereas, nearly every worker in North Carolina is likely to need, during any given year, time off to attend to their own illness or that of an immediate family member, or for routine medical care; and

Whereas, when parents are available to care for their children who become sick, the children's recovery is faster, more serious illnesses are prevented, and the children's overall health is improved; and

Whereas, parents who cannot afford to miss work must send children with a contagious illness to child care or school, contributing to the high rate of infections in child care centers and schools; and

Whereas, providing employees time off to attend to their own health care needs ensures that they will be healthier and more efficient employees in the long run; and

Whereas, there are many workers in North Carolina who are not entitled to any paid sick leave to care for their own health needs or the health needs of members of their families; and

Whereas, low-income workers are significantly less likely to have paid sick leave than other members of the workforce; and

Whereas, providing minimal paid sick leave is affordable for employers and good for business; Now, therefore,

The General Assembly of North Carolina enacts:

SECTION 1.  Article 3 of Chapter 95 of the General Statutes is amended by adding a new section to read:

" 95-28.4.  Paid sick days.

(a)       The following definitions apply in this section:

(1)       Child. - A biological, adopted, or foster child, stepchild, legal ward, or child of a parent standing in loco parentis who is under 18 years of age, or 18 years of age or older but incapable of earning wages because of a mental or physical incapacity.

(2)       Employee. - Any person who performs services for an employer for wage, remuneration, or other compensation.

(3)       Employer. - Any individual, corporation, partnership, or other entity, including any agent thereof, who engages the services of an employee or employees for wages, remuneration, or other compensation.

(4)       Federal act. - The Family and Medical Leave Act of 1993, 29 U.S.C. 2601 to 2654 inclusive, as it may be amended.

(5)       Health care provider. -  A provider who is not employed by an employer to whom the provider issues certification and who is:

a.         A doctor of medicine or osteopathy licensed to practice medicine in the State;

b.         A physician assistant licensed in this State; or

c.         A family nurse practitioner licensed in this State.

(6)       Parent. - A biological, foster, stepparent, or adoptive parent of an employee or an employee's spouse, or other person who stood in loco parentis during the childhood of an employee or employee's spouse.

(7)       Seven paid sick days. - The total number of paid sick hours computed by determining the number of hours in a regular workday and multiplying this number by seven.

(8)       Sick day. - A portion of or a regular workday when an employee is unable to report to work because of the reasons described in subsection (c) of this section.

(b)       All employees who work in North Carolina who must be absent from work for the reasons set forth in subsection (c) of this section shall be entitled to not less than seven sick days with pay during a 12-month period, or to a pro rata number of paid days or hours under the provisions of subsection (d) of this section. The 12-month period for each employee shall be calculated from the date-of-hire or subsequent anniversary date.

(c)       Paid sick days shall be provided to an employee by an employer for any of the following reasons:

(1)       To care for the employee's child, spouse, parent, or parent of spouse who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care, or that is covered under the federal act.

(2)       To care for the employee's own physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care, or that is covered under the federal act.

(3)       To allow an employee to attend a routine medical appointment for himself or herself or for a child, or, in the case of a spouse, parent, or parent of spouse otherwise in need of care.

(4)       To allow an employee to address the psychological, physical, or legal effects of domestic violence as defined in G.S. 50B-1.

(d)       Paid sick days leave shall accrue at the rate of one hour of pay for every 30 hours worked up to the maximum of seven paid sick days. Paid sick days may be used as accrued, or be loaned by the employer, at its discretion, to the employee in advance of accrual. An employer may not require an employee to reimburse it for any unearned sick days. Unless the employer and employee agree to designate otherwise, for periods of paid sick day leave that are less than a normal workday, the leave shall be counted on an hourly basis, or the smallest increment that the employer's payroll system uses to account for absences or use of leave.

(e)       An employer may require certification of the qualifying illness, injury, or health condition when a paid sick day leave period covers more than three consecutive workdays. Any reasonable documentation signed by a health care provider involved in following or treating the illness, injury, or health condition, and indicating the need for the amount of sick days taken, shall be deemed acceptable certification. The employer shall not delay the commencement of leave taken for purposes of subsection (c) of this section or pay for this period on the basis that the employer has not yet received the certification. Nothing in this section shall be construed to require an employee to provide as certification any information from a health care provider that would be in violation of section 1177 of the Social Security Act or the regulations promulgated pursuant to section 264(c) of the Health Insurance Portability and Accountability Act, 42 U.S.C. 1320d-2 note.

(f)        If the necessity for paid sick days leave under this section is foreseeable, the employee shall provide the employer with not less than seven days' notice before the date the leave is to begin. If the necessity for leave is not foreseeable, the employee shall provide such notice as soon as is practicable after the employee is aware of the necessity of such leave.

(g)       Paid sick days shall not carry over annually to the extent not used by the employee. Nothing in this section shall be construed to require an employer to allow accumulation of more than seven paid sick days leave for an employee unless an employer agrees to do so.

(h)       It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under, or in connection with, this section, including using the taking of paid sick days under this section as a negative factor in an employment action such as hiring, evaluation, promotion, or a disciplinary action, or counting the paid sick days under a no-fault attendance policy.

(i)        It shall be unlawful for any employer to take any adverse action against an employee because the employee:

(1)       Exercises rights or attempts to exercise rights under this section.

(2)       Opposes practices which the employee believes to be in violation of this section.

(3)       Supports the exercise of rights of another under this section. Exercising rights under this section includes filing an action, or instituting or causing to be instituted any proceeding under or related to this section.

(4)       Provides or is about to provide any information in connection with any inquiry or proceeding relating to any right provided under this section; or testifies in or is about to testify in any inquiry or proceeding relating to any right provided under this section.

(j)        The Commissioner of Labor shall adopt rules to implement and administer this section and shall enforce the provisions of this section according to Article 21 of Chapter 95 of the General Statutes in the manner prescribed regarding retaliatory employment discrimination.

(k)       Nothing in this section shall be construed to discourage employers from adopting or retaining paid sick day policies more generous than policies that comply with the requirements of this section, and nothing in this section shall be construed to diminish the obligation of an employer to comply with any contract, collective bargaining agreement, or any employment benefit program or plan that provides greater sick day leave rights to employees than the rights established under this section.

(l)        Employers who have a paid time off leave policy providing paid leave in excess of 20 days per year shall not be required to modify that policy, if that policy offers an employee the option, at the employee's discretion, to take paid sick days that are at least equivalent to the amounts described in subsections (b), (c), and (f) of this section or if the policy offers paid sick days leave in amounts equivalent to the amounts described in those subsections for the purposes that include the reasons described in subsection (b) of this section.

(m)      Employers shall give notice that employees are entitled to paid sick leave, the amount of paid sick leave, and the terms of its use guaranteed under this section, that retaliation against employees who request or use paid sick leave is prohibited, and that each employee has the right to file a complaint if sick leave as required by this section is denied by the employer or the employee is retaliated against for requesting or taking paid sick leave. Employers may comply with this section by supplying each of their employees with a notice in English and Spanish that contains the information required by this section or by displaying a poster in a conspicuous and accessible place in each establishment where the employees are employed which contains in English and in Spanish all information required by this section."

SECTION 2.  G.S. 95-241(a)(1) is amended by adding a new sub-subdivision to read:

"(a)      No person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to do any of the following:

(1)       File a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following:

a.         Chapter 97 of the General Statutes.

b.         Article 2A or Article 16 of this Chapter.

c.         Article 2A of Chapter 74 of the General Statutes.

d.         G.S. 95-28.1.

e.         Article 16 of Chapter 127A of the General Statutes.

f.          G.S. 95-28.1A.

g.         G.S. 95-28.4.

(2)       Cause any of the activities listed in subdivision (1) of this subsection to be initiated on an employee's behalf.

(3)       Exercise any right on behalf of the employee or any other employee afforded by Article 2A or Article 16 of this Chapter or by Article 2A of Chapter 74 of the General Statutes.

(4)       Comply with the provisions of Article 27 of Chapter 7B of the General Statutes.

(5)       Exercise rights under Chapter 50B. Actions brought under this subdivision shall be in accordance with the provisions of G.S. 50B-5.5."

SECTION 3.  This act becomes effective on the 90th day after it becomes law and does not apply to any collective bargaining agreement entered into prior to that date that is still in effect on that date.