Every employee will at some point need to contend with sick days and/or parental leave, but depending on your job and employer this can be a relatively easy or difficult process. However, there are some safeguards in place for such an occasion, particularly the Family Medical Leave Act (FMLA). This federal legislation covers certain employers and helps ensure that employees are guaranteed a certain amount of sick and family days. Thus, understanding how this legislation is key to grasp what you, as a covered employee, are entitled to.
Currently, FMLA is the only form of federal legislation that deals with maternity and parental leave. Under the FMLA, employers who are covered by the FMLA must provide eligible employees with up to 12 weeks of unpaid leave to take care of a new child, care for an immediate family member, or take leave because of a serious medical condition.((FMLA (Family & Medical Leave), U.S. Dept. of Lab. (last accessed Apr. 7, 2017), available at https://www.dol.gov/general/topic/benefits-leave/fmla)) Under the FMLA, public and private schools, public agencies, and companies who employ 50 or more employees are covered under the act and must provide this accommodation for employees.((FMLA (Family & Medical Leave), U.S. Dept. of Lab. (last accessed Apr. 7, 2017), available at https://www.dol.gov/general/topic/benefits-leave/fmla)) However, to be an eligible employee, they must have worked for the employer for at least 12 months prior to taking leave, they must have been a full-time employee, and “work at a location where the company employs 50 or more employees within 75 miles.”((Id.; see Gillian Lester, A Defense of Paid Family Leave, 28 Harv. J.L. & Gender 1 (2005).)) However, even if a covered employee works for a covered employer, the FMLA only requires the employer to provide unpaid leave, often forcing employees to choose between taking care of their child or themselves or their paycheck.((Bernie D. Jones, Privately Funded Family Medical Leave?, 35 N. Ill. U.L. Rev. 119, 121 (2014).))
In the years since the passage of the FMLA in 1993, United States employers have been reluctant to go beyond the FMLA requirements and provide for paid parental and sick leave. As the United States Department of Labor found in 2015, “[o]nly 12 percent of U.S. private-sector workers have access to paid family leave through their employer.”((DOL Factsheet: Paid Family and Medical Leave, U.S. Dept. of Labor (June 2015), available at https://www.dol.gov/wb/paidleave/PDF/PaidLeave.pdf.)) Beyond parental leave, a surprising amount of employees are also bereft of sick leave. According to Bestsey Stevenson of the White House Council of Economic Advisers, in 2015 43.5 million American workers, approximately 39 percent of all workers in the U.S., did not have access to any sick leave at all.((Christopher Ingraham, More than a third of American workers don’t get sick leave, and they’re making the rest of us ill, Wash. Post (Jan. 15, 2015), available at https://www.washingtonpost.com/news/wonk/wp/2015/01/15/more-than-a-third-of-american-workers-dont-get-sick-leave-and-theyre-making-the-rest-of-us-ill/?utm_term=.0cfad07e0bde.)) Kentucky specifically has failed to execute any paid maternity or sick leave program as of 2017, with the only major protection for workers being the FMLA.((Family and Medical Leave, Ky. Personnel (last accessed June 7, 2018), available at https://personnel.ky.gov/Pages/FMLA.aspx.)) While the Kentucky Civil Rights Act does provide some level of protection by forcing employers to treat pregnant employees the same as any other employee who suffers from a temporary disability, this statute is the only state-level legislation that compliments FMLA provisions.((Kentucky Maternity and Pregnancy: What you need to know, BLR (last accessed June 7, 2018), available at http://www.blr.com/Compensation/Discrimination/Maternity-and-Pregnancy-in-Kentucky#.)) Beyond these protections, however, there are few if any options for employees wishing to take paid maternity leave in Kentucky, with many being forced to use accrued sick or vacation time to receive a paycheck during their leave or to try and access Temporary Disability Insurance to procure some income during their leave.((Jennifer Swanberg, Taking maternity leave—how best to prepare, Bus. Lexington (Apr. 2, 2009), available at https://www.uky.edu/Centers/iwin/publications/published_finals/Maternity.pdf.))
While these protections may seem minor, as of now this legislation is the only safeguard many employees have in Kentucky on this issue. While there has been debate over whether national legislation will be implemented to mandate paid family and medical leave, whether this will actually occur remains to be seen. Recently, however, New Jersey became the tenth state to adopt legislation requiring paid sick leave.((Alkida Kacani & Maxine Neuhauser, New Jersey Becomes the 10th State to Require Paid Sick Leave, National Law Review (June 14, 2018), https://www.natlawreview.com/article/new-jersey-becomes-10th-state-to-require-paid-sick-leave.)) The law “will allow New Jersey employees to accrue up to 40 hours (five days) of paid sick and safe leave annually,” and “covers nearly all New Jersey employees, including temporary and seasonal employees.”((Alkida Kacani & Maxine Neuhauser, New Jersey Becomes the 10th State to Require Paid Sick Leave, National Law Review (June 14, 2018), https://www.natlawreview.com/article/new-jersey-becomes-10th-state-to-require-paid-sick-leave.))
While it is uncertain when and if Kentucky will adopt such legislation if you feel as if you are a covered employee under the FMLA and have been deprived of your rights under the Act, you should seek counsel immediately to discuss the legal remedies available to you.