February 08, 2021

Colorado and New York are the latest states to enact laws requiring employers to provide accrued paid leave. Beginning in 2021, Colorado requires most employers to provide employees with one hour of paid sick leave for every 30 hours worked. New York required the same accrual rate beginning Sept. 30, 2020, for paid sick leave to use in 2021. These mandates are just the latest among a growing number of states requiring employers to provide paid sick and other accrued leave for employees. Download the 42-page print-friendly PDF for a chart detailing key provisions of these laws in each jurisdiction. Special thanks to Rebecca Atkins, Nicholene Nelson, Patricia Farrell, Stacey Forrester, Melissa Travis, and Fernanda Zendejas of Mercer’s Regulatory Resources Group and Charlene D’Ambrosio of Mercer’s Life, Absence and Disability Group for their assistance with this article.

States mandating accrued paid leave

To date, 13 states — Arizona, California, Colorado, Connecticut, Maryland, Massachusetts, Michigan, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington — and Washington, DC, have enacted paid sick leave mandates. Maine and Nevada have laws requiring accrued paid time off not limited to sick time.

All of these laws have certain common features, including the following:

• Accruals are based on the employee’s work location.
• Employers whose existing paid leave programs (e.g., time off, sick leave or personal leave) meet or exceed the maximum accrual don’t have to provide additional leave if the existing plan allows the same leave uses without more restrictions or limitations.
• To determine hours worked, employees exempt from the federal Fair Labor Standards Act’s minimum wage and overtime standards are considered to work 40 hours per week.
• Properly classified independent contractors are not eligible for paid sick leave.
• Employers may require reasonable notice if the leave is foreseeable.
• If leave is unforeseeable, employees should provide notice as soon as practicable.
• Worker protections and anti-retaliation provisions apply.
• Leave mandates don’t apply to federal government employers, but may apply to state and/or local government employers.

The print-friendly GRIST’s chart can help employers track key provisions of different jurisdictions’ accrued paid leave laws, including:

• Which employers must comply, and which employees can accrue and take paid leave, including any special exceptions for employees covered by a collective bargaining agreement (CBA)
• How much paid leave employees can accumulate, use and carry over from one year to the next
• Whether accrual is permitted in increments other than one hour or can start at some time after the date of hire
• Whether employers can front-load — or credit at the start of each year — all paid leave up to the annual cap and avoid the need to track hourly accruals and provide year-end carryovers
• What reasons — in addition to an employee’s own illness — justify the use of accrued paid leave
• What absence notices or documentation employers can require, and what information about the mandate employers must provide to employees
• What protections — in addition to job protections — apply to employees who exercise their rights to accrued paid leave
• Whether employers have to pay out unused accrued leave at separation from employment, and what rules apply if the individual is rehired

The chart does not cover other leave mandates, such as:

• Paid sick leave required by local law or ordinance (other than Washington, DC’s mandate)
  • More than 20 cities and counties currently have laws requiring employers to provide accrued paid leave to employees. Local mandates in California, Maryland, New York and Washington must be coordinated with the respective state mandate.
• Paid disability or family and medical leave programs required by state law (see this GRIST for coverage of these mandates)
  • Ten states — California, Colorado, Connecticut, Hawaii, Massachusetts, New Jersey, New York, Oregon, Rhode Island and Washington — along with Puerto Rico and Washington, DC, have enacted laws providing paid leave for an employee’s own serious health condition or disability. With the exception of Hawaii and Puerto Rico, these laws also provide paid leave for qualifying family or caregiving reasons.
• Federal, state or local emergency paid leave laws related to COVID-19 (see other GRISTs on federal and state/local COVID-19 leave mandates)
  • No federal law requires private-sector employers to provide paid leave, unless they are federal contractors subject to Executive Order 13706. Although the Families First Coronavirus Response Act had required some employers to provide COVID-19-related emergency paid leave during 2020, that mandate expired at year-end.
• Unpaid job-protected leave under the federal Family and Medical Leave Act and similar state laws
• Separate laws requiring job-protected leave for bereavement, organ and bone marrow donation, voting, or separate leave for employees dealing with domestic violence or sexual assault