EO 13706 Mandates Paid Leave for Federal Contractor Employees in 2017

On Labor Day, President Obama issued Executive Order 13706 (which was published in the Federal Register a few days later) mandating that federal contractors provide paid leave to employees.  Regulations are to be published by the end of the September 2016 and will apply to contractors and subcontractors who receive new federal contracts in 2017.  While employees may accrue one hour of paid leave for every 30 worked (up to 56 hours per year), they may carry over those accrued hours year to year and may reinstate their leave bank upon being rehired within 12 months, but may not be paid out on termination for their accrued leave.   While the leave is entitled “sick” leave, it is actually much broader: the paid leave may cover their own illness, that of their parents, spouses, children and those “or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship,” and may also use it for diagnostic or preventive medical care, and “domestic violence, sexual assault, or stalking” if the employee needs time off from work in order to seek counseling, relocation, legal action, or assistance from a victim services organization.

The EO prohibits covered employers from taking certain actions:

·        Employees cannot be required to recruit their own replacement;

·        Limiting the amount of paid leave that may be accrued to less than 56 hours per year;

·        Take credits against prevailing wage obligations for this paid leave;

·        Disclosing information from certifications about the employee’s need for medical, family or domestic violence/stalking leave unless required by law or with the employee’s consent; and

·        Discriminating against or interfering with an employee’s right to take paid leave, in asserting paid leave rights or assisting another employee asserting rights under this EO.

Employers will not be required to pay the employee for accrued paid leave upon termination, but is permitted to do so.   The employer’s existing sick leave policy may satisfy the obligations of this EO if it meets all of its terms, applies to all employees, and exceeds any applicable requirements of the Davis-Bacon and Service Contract Acts.  The EO says nothing about any qualifications periods that may be imposed on employees before they may begin accruing paid leave.

The EO does not apply to federal grants or independent agencies (which are only strongly encouraged to comply).

Like the FMLA, employees will have certain obligations:

·        Must make an oral or written request for leave “that includes the expected duration of the leave and is made at least 7 calendar days in advance where the need for the leave is foreseeable, and in other cases as soon as is practicable.”

·        Must provide written certification within 30 days of the employer’s request if the absence is greater than 3 consecutive days.  This certification may be about medical causes or domestic violence/stalking and need only convey the “minimum necessary information” to confirm the reason for the leave.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.