Senate Bill No. 754
(By Senators Unger and Foster)
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[Introduced February 18, 2008; referred to the Committee on
Labor; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §21-5G-1, §21-5G-2,
§21-5G-3, §21-5G-4, §21-5G-5, §21-5G-6, §21-5G-7, §21-5G-8,
§21-5G-9, §21-5G-10 and §21-5G-11, all relating to granting a
minimum amount of paid sick leave to almost all employees
working within the State of West Virginia.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §21-5G-1, §21-5G-2,
§21-5G-3, §21-5G-4, §21-5G-5, §21-5G-6, §21-5G-7, §21-5G-8,
§21-5G-9, §21-5G-10 and §21-5G-11, all to read as follows:
ARTICLE 5G. HEALTHY FAMILIES ACT.
§21-5G-1. Definitions.
As used in this article:
(1) "Child" means a biological, foster or adopted child, a stepchild, a legal ward or a child of a person standing in loco
parentis, who is:
(A) Under eighteen years of age; or
(B) Eighteen years of age or older and incapable of self-care
due to a physical or mental disability.
(2)"Employee" means any person employed in the State of West
Virginia by an employer, except that employee does not include:
(A) Any individual engaged in activities of an educational,
charitable, religious, fraternal or nonprofit organization where
the employer-employee relationship does not in fact exist, or where
the services rendered to such organization are on a voluntary
basis;
(B) Any individual who volunteers to perform services for a
public agency which is a state, political subdivision of the state
or an interstate governmental agency, if:
(I) The individual receives no compensation or is paid
expenses, reasonable benefits or a nominal fee to perform the
services for which the individual volunteered; and
(ii) Such services are not the same type of services which the
individual is employed to perform for such public agency; and
(C) Any individual performing services in the employ of his or
her parent, son, daughter or spouse.
(3) "Employer" means any individual, partnership, association,
public or private corporation or any person or group of persons acting directly or indirectly in the interest of any employer in
relation to an employee. The employer must employ twenty-five or
more employees during any calendar week or as herein defined in any
one separate, distinct and permanent location or business
establishment.
(4) "Health care professional" means any person licensed under
federal or state law to provide health care services, including,
but not limited to, nurses, doctors and emergency room personnel.
(5) "Parent" means a biological, foster or adoptive parent, a
stepparent, legal guardian, parent-in-law or an individual who
stood in loco parentis when a person was a child.
(6) "Pro rata" with respect to benefits offered to part-time
employees, means the proportion of each of the benefits offered to
full-time employees that are offered to part-time employees that,
for each benefit, is equal to the ratio of part-time hours worked
to full-time hours worked.
(7) "Sick leave" means an increment of compensated leave
provided by an employer to an employee as a benefit of employment
for use by the employee during an absence from employment for any
of the reasons described in section three of this article.
§21-5G-2. Accumulation of sick time.
(a) Employers shall provide each employee with not less than:
(1) Seven days of paid sick leave annually for employees
working thirty hours or more per week; or
(2) A pro rata amount of paid sick leave annually for
employees working less than thirty hours per week or less than one
thousand sixty hours per year.
(b) Sick leave shall begin to accumulate immediately, but no
employer is required to grant accrued sick leave before ninety days
from the commencement of employment. Paid sick leave must accrue
at least monthly and after the initial ninety day waiting period,
may be used as it is accrued. At the employers discretion, sick
leave may be loaned to the employee in advance of the accrual by
such employee.
(c) Accrued sick leave provided under this section may carry
over from year to year but this article does not require an
employer to permit an employee to accumulate more than seven days
of sick leave in any given year.
(d) For periods of paid sick leave less than a normal workday,
that leave shall be counted:
(1) On an hourly basis; or
(2) If less than an hour, in the smallest increment that the
employer's payroll system uses to account for absences or use of
other leave.
(e) If the schedule of an employee varies from week to week,
a weekly average of the hours worked over the twelve week period
prior to the beginning of a sick leave period shall be used to
calculate the employee's normal workweek for the purposes of determining the amount of sick leave to which the employee is
entitled.
§21-5G-3. Use of sick time.
(a) Sick leave accrued under this article may be used by an
employee for any of the following:
(1) An absence resulting from a physical or mental illness,
injury or medical condition of the employee;
(2) An absence resulting from obtaining professional medical
diagnosis or care, or preventive medical care, for the employee; or
(3) An absence for the purpose of caring for a child, parent
or a spouse, who has any of the conditions or needs diagnosis or
care described in paragraphs one or two above.
(b) Employees shall make reasonable efforts to schedule leave
in a manner that does not unduly disrupt the operations of the
employer.
(c) Sick leave shall be provided upon the oral or written
request of an employee. Such request shall include:
(1) The reason for the absences involved and expected duration
of leave; and
(2) In cases in which leave is foreseeable at least seven days
in advance of such leave, seven days notice shall be provided; or
(3) In cases in which leave is not foreseeable at least seven
days in advance of such leave, notice shall be given as soon as
practicable once the employee becomes aware of the need for such leave.
§21-5G-4. Certification.
(a) An employer may only require that a request for leave be
supported by the certification of a health care professional if the
leave period covers more than three consecutive work days.
(b) An employee must provide certification of a health care
professional upon request to the employer in a timely manner, no
later than thirty days after the first day of leave. The employer
shall not delay the commencement of the leave on the basis that the
employer has not yet received certification.
(c) Any health information possessed by an employer regarding
an employee, employee's child, parent or spouse shall:
(1) Be maintained on a separate form and in a separate file
from other personnel information;
(2) Be treated as confidential medical records; and
(3) Not be disclosed except to the affected employee or with
the express permission of the affected employee.
§21-5G-5. Posting requirements.
(a) Every employer subject to this article, or to any rules
issued thereunder, shall keep a summary of the article and copies
of any applicable rules issued thereunder, or a summary of the
rules, posted in a conspicuous and accessible place in or about the
premises wherein any person subject thereto is employed. Employees
shall be furnished copies of the summaries and rules by the state, on request, without charge.
(b) An employer who willfully violates the posting
requirements of this section is subject to a civil fine in an
amount not to exceed one hundred dollars for each separate offense.
§21-5G-6. Duties and powers of the commissioner of labor.
(a) The commissioner shall enforce and administer the
provisions of this article, and propose such rules for legislative
approval in accordance with article three, chapter twenty nine-a of
this code as are needful to give effect to the provisions of this
article.
(b) The commissioner is authorized at reasonable times to
enter the place of business of an employer subject to the
provisions of this article, for purposes of:
(1) Inspecting and examining, copying, photographing or
otherwise reproducing all payroll records of the employer directly
relating to the accrual and usage of paid sick leave and hours of
employment of persons employed by him or her;
(2) Questioning or otherwise examining persons employed by the
employer on the subject of accrual and usage of paid sick leave and
of their employment.
(c) The commissioner is authorized and empowered to make
investigations to determine whether there is reasonable cause to
believe that any person is an employer as defined in section one of
this article, or whether there is reasonable cause to believe that any provision of this article is being or has been violated.
(d) The commissioner is authorized and empowered to file
criminal complaints against persons whom the commissioner has
reasonable cause to believe have committed any offense created or
defined by the provisions of this article.
(e) The commissioner is authorized and empowered to institute
civil actions seeking appropriate injunctive relief to compel an
employer subject to this article to comply with the provisions of
this article.
(f) The commissioner shall enforce and administer the
provisions of this article in accordance with chapter twenty-nine-
a of this code. The commissioner or his or her authorized
representatives are empowered to enter and inspect such places,
question such employees and investigate such facts, conditions, or
matters as they may deem appropriate, to determine whether any
person, firm or corporation has violated any provision of this
article, or any rule issued hereunder or which may aid in the
enforcement of the provisions of this article.
§21-5G-7. More generous leave policy.
(a) Nothing in this article prohibits an employer from the
adoption or retention of a paid leave policy more generous than the
one it requires.
(b) An employer with a leave policy providing paid leave
options is not required to modify such policy, if such policy offers an employee the option at the employee's discretion to take
paid leave that is at least equivalent to the sick leave described
in this article.
(c) An employer may not eliminate or reduce leave in existence
on the date of enactment of this article, regardless of the type of
such leave, in order to comply with the provisions of this article.
§21-5G-8. Right to collective bargaining preserved.
Nothing in this article interferes with, impedes, or in any
way diminishes the right of employees to bargain collectively with
their employers through representatives of their own choosing in
accordance with federal and state law in order to establish sick
leave, paid leave, and other terms and conditions of employment in
excess of the minimum paid sick days established in this article.
§21-5G-9. Employer shall retain documentation.
Employers shall retain records documenting hours worked by
employees and paid sick leave taken by employees, for a period of
three years.
§21-5G-10. Offenses and penalties.
(a) Any employer who willfully hinders or delays the
Commissioner of Labor in the performance of the commissioner's
duties in the enforcement of this article, or refuses to admit the
commissioner to any place of employment, or fails to make, keep and
preserve any records as required under this article, or falsifies
any of those records, or refuses to make them accessible to the commissioner upon demand, or refuses to furnish them or any other
information required for the proper enforcement of the article to
the commissioner upon demand is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than one hundred
dollars nor more than five hundred dollars per violation.
(b) Any employer who willfully discharges or in any manner
willfully discriminates against any employee, including using paid
sick leave as a negative factor in an employment action or counting
the use of paid sick leave under a no-fault attendance policy,
because such employee has made a complaint to his or her employer,
or to the commissioner, that he or she has not been given paid sick
leave benefits in accordance with this article, or because such
employee has instituted or is about to institute any civil action,
or file any petition or criminal complaint against the employer by
reason of the provisions of this article, or because such employee
has testified or is about to testify in any administrative
proceeding, civil action, or criminal action under this article, or
has assisted or is assisting another in doing so is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than one hundred dollars nor more than five hundred dollars per
violation.
(c) An employer may not otherwise violate the article, or any
rule adopted thereunder. Each violation constitutes a separate
offense.
§21-5G-11. Enforcement.
(a) Any employer who does not allow an employee to use or
accrue paid sick leave time to which the employee is entitled under
this article, or who discriminates against an employee for using
paid sick leave time pursuant to this article, is liable to such
employee for damages equal to the amount of any wages, salary,
employment benefits or other compensation denied or lost to such
employee by reason of the violation. In cases in which wages,
salary, employment benefits or other compensation has not been
denied or lost by such employee, the employer is liable to the
employee for any actual monetary losses sustained by the employee
as a direct result of the violation up to a sum equal to ten days
of wages or salary for the employee. Any interest on the amount the
employer is liable for is to be paid to the employee. An
additional amount as treble damages and reasonable attorney fees
are also to be paid to the employee. In addition, the employee is
entitled to any such equitable relief as may be appropriate,
including employment, reinstatement and promotion.
(b) Any person who has not been provided paid sick leave in
accord with this article or has been discriminated against because
of the use of paid sick leave in accord with this article, or the
commissioner or his or her designated representative, upon the
request of such person, may bring any legal action necessary to
collect a claim under this article. With the consent of the employee, the commissioner may settle and adjust any claim to the
same extent as might the employee.
(c) Any agreement to provide accrued sick leave less than the
amount applicable in this article is hereby declared by the
Legislature of West Virginia to be against public policy and
unenforceable.
NOTE: The purpose of this bill is to grant a minimum amount of
paid sick leave to almost all employees working within the State of
West Virginia.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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