House Bill 2770, which was recent­ly intro­duced into the West Vir­ginia House of Del­e­gates, would cre­ate the “Flex­i­ble Leave Act” to allow employ­ees to take already earned paid leave, and to use that leave for paid time off for an ill­ness of the employ­ee or the employee’s “imme­di­ate fam­i­ly”. The bill does not give employ­ees any addi­tion­al paid leave—it only allows them to take their paid leave that they have already earned under their employ­ers’ poli­cies, and allows the flex­i­bil­i­ty (hence the name, “Flex­i­ble Leave Act”) to take leave that may have been intend­ed for anoth­er pur­pose, such as earned vaca­tion time, and apply it for the dif­fer­ent pur­pose of their own or an imme­di­ate fam­i­ly member’s illness.

On Jan­u­ary 24, 2011, Del­e­gates Caputo, Fra­gale, Hat­field, Mar­tin, and Moye intro­duced House Bill 2770, which is being referred to the Com­mit­tee on Ener­gy, Indus­try and Labor, Eco­nom­ic Devel­op­ment and Small Busi­ness then Finance. You can keep track of the progress of the bill by going to the Bill Sta­tus page and enter­ing 2770 in the “Enter Bill Num­ber” field. For infor­ma­tion on the bill’s spon­sors, or on any oth­er mem­bers of the Sen­ate, you can go to the House Mem­bers page and pick the mem­ber from a drop-down list. For those of you who are inter­est­ed in find­ing out more about the leg­isla­tive process, the Leg­is­la­ture has a “How a Bill Becomes Law” page.  The Leg­is­la­ture also has a very nice pho­to gallery of the Capi­tol Build­ing.

Accord­ing to an arti­cle in The State Jour­nal, unions have been press­ing this bill to give employ­ees the right to take paid leave so they can take paid time off to tend to ill­ness­es of the employ­ees and the imme­di­ate fam­i­ly mem­bers of the employ­ees. Accord­ing to the note in House Bill 2770 itself, its pur­pose is to allow employ­ees to use “earned leave with pay for an ill­ness in an employee’s imme­di­ate family”.

Here is a walk-through of what the Flex­i­ble Leave Act (“the Act”), House Bill 2770, says:

1. 21–5G‑2 (1): The Act cov­ers all pri­vate (non-gov­ern­men­tal) employ­ers. How­ev­er, it appears the House Ener­gy, Indus­try and Labor, Eco­nom­ic Devel­op­ment and Small Busi­ness vot­ed to amend the Act to lim­it it to employ­ers with 50 or more employ­ees.
2. 21–5G‑3: The Act then applies its leave pro­vi­sions only to an employ­er that “pro­vides leave with pay under the terms of: (1) A col­lec­tive bar­gain­ing agree­ment; or (2) an employ­ment pol­i­cy” (empha­sis added).
3. 21–5G‑2(4): “Leave with pay” is defined to mean “any time away from work for which an  employ­ee receives com­pen­sa­tion. Leave with pay includes sick time, vaca­tion time and com­pen­sato­ry time”
4. So the Act deals only with “leave with pay” under a col­lec­tive bar­gain­ing agree­ment or employ­ment pol­i­cy, and that leave with pay includes (non-exclu­sive­ly) sick, vaca­tion, and com­pen­sato­ry time. If the employ­er does not offer one of these types of leave with pay, then the Act does not apply.
5. 21–5G‑4 then sets out the new right the employ­ee has: The employ­ee, where the employ­er offers leave with pay, “may use leave with pay for his or her ill­ness or for an ill­ness in the employee’s imme­di­ate fam­i­ly”.  Sec­tion 21–5G‑2(3) defines “imme­di­ate fam­i­ly” as a “child, spouse or par­ent”. An employ­ee who uses leave under the Act must “com­ply with the terms” of the employer’s col­lec­tive bar­gain­ing agree­ment or the employer’s pol­i­cy (21–5G‑5©). Thus, the employ­ee does not get any addi­tion­al leave under the Act—the employ­ee only has leave with pay the employ­er is already pro­vid­ing, and sec­tion 21–5G‑5(a) makes it clear that the employ­ee “may only use leave with pay under this arti­cle that has been earned” (empha­sis added).
6. So the Act cre­ates no new paid leave for employ­ees. If the employ­er does not offer paid leave, then the employ­ee has no rights under the Act. If the employ­er pro­vides paid leave, the employ­ee has the right to elect to use it for ill­ness of the employ­ee or the employee’s imme­di­ate fam­i­ly mem­ber. In essence, the Act gives the employ­ee the right to shift the pur­pose of earned paid leave. As an exam­ple, if the employ­er offers paid vaca­tion leave, the employ­ee who has a sick child is enti­tled to use the vaca­tion leave for the care of the child, and in tak­ing the leave the employ­ee must com­ply with the employer’s poli­cies (21–5G‑5©).
7. The Act pro­vides the right to shift paid leave to sit­u­a­tions involv­ing ill­ness, and the Act says it does not affect the unpaid leave afford­ed by the FMLA.  The FMLA enti­tles a qual­i­fy­ing employ­ee to 12 weeks annu­al­ly of unpaid leave.
8. 21–5G‑6: The Act pro­hibits employ­ers from dis­charg­ing or tak­ing oth­er adverse action against the employ­ee who exer­cis­es rights under the Act, or who files or par­tic­i­pates in any  com­plaint under the Act.

Well that’s it. The Act does not give an employ­ee any right to paid leave beyond what an employ­er is already vol­un­tar­i­ly pro­vid­ing. But once an employ­er pro­vides paid leave, the employ­ee may shift the pur­pose from, for exam­ple, vaca­tion time to sick time.

When I get any fur­ther news about the Flex­i­ble Leave Act (House Bill 2770), I’ll update you on this blog.

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Drew M. Capuder

Attorney at Capuder Fantasia PLLC

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 30 years of experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261.

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