On September 7, 2015, in honor of the Labor Day holiday, President Obama issued Executive Order 13706 requiring federal contractors to offer their employees up to 7 days of paid sick leave annually, including paid leave for family care. The White House justified the need for the directive in a press release emphasizing that the United States is “the only advanced country on Earth that doesn’t guarantee paid sick leave or paid maternity leave to our workers,” a position which the White House argued “forces too many parents to make the gut-wrenching choice between a paycheck and a sick kid at home.” At the time the Order took effect, the directive estimated to benefit 300,000 employees of federal government contractors and sub-contractors, including lower-tier subcontractors. This article explains what you need to know about how the Executive Order will affect you as either a contractor or employee.

Scope and Accrual of Sick Leave Under Executive Order 13706
Executive Order 13706 (the “EO”) states that employees of federal contractors and sub-contractors shall not earn less than 1 hour of paid sick leave for every 30 hours worked. In addition, a contractor may not set a limit on the total accrual of paid sick leave at less than 56 hours. Paid sick leave earned under the EO may be used by an employee for an absence resulting from:

• Physical or mental illness, injury, or medical condition;
• Obtaining diagnosis, care, or preventative care from a health care provider;
• Caring for a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship who has any of the conditions or needs for diagnosis, care, or preventive care as specified above; and
• Domestic violence, sexual assault, or stalking; including time absent to obtain counseling, seek relocation, seek assistance from victim services, or take legal action, including preparation and participation in any related criminal proceeding.

Paid sick leave accrued under the EO shall carry over from one year to the next. Nothing in the EO requires a contractor to financially compensate an employee for unused sick leave upon a separation from employment, however, employees who are re-hired within 12 months after a job separation will have their accrued leave reinstated.

Advance Notice of Leave Under Executive Order 13706
To receive paid sick leave, an employee must provide an oral or written request that includes the expected duration of the leave. In most cases, such as emergencies or sudden illness, the request for paid sick leave should be made as soon as practicable. When foreseeable, however, the employee must provide at least 7 calendar days of notice in advance of the requested leave.

Interference and Discrimination Under Executive Order 13706
Contractors may not interfere with or discriminate against an employee for taking (or attempting to take) paid sick leave “or in any manner asserting, or assisting any other employee in asserting,” their leave rights under the EO. Contractors are also prohibited from making the use of leave contingent on the requesting employee finding a replacement to cover any time to be missed.

Certification Under Executive Order 13706
If the employee is absent for 3 or more consecutive days of paid leave, the contractor may require certification issued by a health care provider for any of the conditions set forth above no later than 30 days from the first day of leave. If the 3 or more consecutive days of paid sick leave is for absences resulting from the domestic violence or sexual assault conditions listed above, only documentation providing the minimum necessary information establishing the need for an absence is required. The contractor is also bound to confidentiality and prohibited from disclosure of the information unless required by law.

Effective Date of Executive Order 13706
The order affects government contracts beginning on or after January 1, 2017. The Secretary of Labor has issued regulations enforcing the EO, including setting forth the exclusions from the requirement, as well as record keeping requirements as needed for enforcement.

Impact of Executive Order 13706 on Existing Policies
Contractors with an existing policy providing paid leave do not necessarily need to change their policy. If the contractor’s paid leave policy is provided in addition to the fulfillment of the Service Contract Act (“SCA”) or Baron-Davis Act (“BDA”) obligations, if applicable, and made to cover all employees, it will satisfy the requirements of this EO so long as the amount and scope of leave satisfies the conditions above. Having said that, leave required by Executive Order 13706 is in addition to a contractor’s obligations under the SCA and BDA, and contractors may not receive credit toward their prevailing wage or fringe benefit obligations under those acts for any paid sick leave provided to satisfy this EO.

Conclusion
Executive Order 13706 affects an estimated 300,000 employees and employers benefiting from federal government contracts. If you have questions about Executive Order 13706 or are involved in a lawsuit or legal dispute regarding Executive Order 13706, contact one of the Minnesota employment attorneys of Trepanier MacGillis Battina P.A.
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About the Author:
Minnesota employment attorney Bryan R. Battina represents employers and employees in matters involving wage and hour regulations, overtime pay, paid leave, employment contracts, and a variety of employment-related disputes. Bryan may be reached at 612.455.0505 or bbattina@trepanierlaw.com. Trepanier MacGillis Battina P.A. is a Minnesota wage and hour law firm located in Minneapolis, Minnesota.
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