Episode 12: Sick Leave on the Farm (COVID-19 Coverage Part 1)
In this episode, Eva and Rachel discuss key legal considerations of sick leave policies for farms who may have sick employees and/or employees with sick family members/kids at home because school is cancelled.
A few states and localities have obligations to provide paid sick leave to employees. In that case, the law will state to whom it must be provided (full time, part time, worked for at least 90 days, etc), and for what reasons (only personal illness, illness of a family member, doctor visits, etc). The vast majority of farms are under no state or local obligation to provide sick leave. Therefore, the discretion of the employer plays a huge role with the ability to define to whom, when, for what the sick leave policy applies. Employers also play a big role even when there is a state/local law. The state/local law sets a baseline, but many employers deviate from it or add additional rules.
For unpaid sick leave, there is a federal law requiring some businesses to offer employees unpaid sick leave: the Family Medical Leave Act (FMLA). Some states also have their own versions of FMLA. It’s really a prohibition on firing someone from a company because they or their family gets sick. It guarantees a job, not their job. It guarantees access to health insurance, but not with the employer's usual contribution. It's good for 12 weeks, but after that an employee can be fire. FMLA doesn't often apply to farms, as it applies if there's 50 or more employees and for employees who have been working for more than one year.
There are also state and federal laws that require some accommodation, including time off to deal with sickness. Folks may have heard of the Americans with Disabilities Act (ADA), which prohibits employees from being fired because they have a disability which can include having an illness. If an employee is in the hospital with COVID-19, you can bet they are protected under the ADA. But still, this isn’t like having sick leave.
For farms, unpaid sick leave is also at the discretion of the employer for the most part. The bottom line is that farm employers have a lot of flexibility. If they did or want to offer paid sick leave, they can, and they can set the parameters. If they don’t want to offer paid sick leave, they can offer unpaid sick leave, also with a lot of discretion to when/how.
It's worth noting that if employees don’t have access to paid leave, they are incentivized to come to work sick, which can be a bad situation for folks dealing with food and customers. Many farm and food related workers aren’t making enough money to go without pay, which also incentivizes workers to come when sick. So, this becomes an issue of equity and fairness, as much as policy. The most important thing to be wary of with your sick leave policy is don’t let discretion cause you to be inconsistent in how you apply your policies. Create a policy and apply it in the same way to every worker.
For those considering revising or implementing a new sick leave policy, read our Sample Farm Employee Handbook. The resource does double duty in that it provides sample language on the left column and a checklist of considerations on the right column. Farmers will find it easy to adapt to your own operation's needs.
Disclaimer: The above communications are delivered for educational purposes only and do not constitute the rendering of legal advice.
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