Are You Creating Leave Liability?

MACKENZIE OLSON

Partner, Alaska office of Davis Wright Tremaine

MIKE O’BRIEN

Partner, Alaska office of Davis Wright Tremaine

Human Resources & Labor Relations

Are You Creating Leave Liability?

ow that the dust has settled around last year’s Paid Sick Leave law, most Alaska employers have put the work into creating policies that formally offer employees paid sick leave. But construction contracting remains a challenging area for implementation because, for many employers, sick leave has never been offered and, when it was, it was never offered as broadly as the new law mandates. Many contractors are still getting up to speed.

Alaska’s new sick leave law, codified at AS 23.10.066–23.10.069, requires employers to provide all employees with paid sick leave each year; employers with 15 or more employees must provide 56 hours each year, while employers with fewer than 15 employees must provide 40 hours each year. The leave may be used for a broad range of reasons, including for absences related to an employee’s own or their family member’s mental or physical illness, injury, or health condition; procuring a medical diagnosis, care, or treatment, including preventative medical care; and absences related to procuring medical or psychological attention, victim’s aid services, legal services, or relocation efforts or efforts to secure an existing home in cases involving domestic violence, sex assault, or stalking. It is a fool’s errand to try to determine whether an employee’s “family member” is really part of their biological family, as the law allows for almost any friend to be included in this definition. The only compliance carve-out applies to the construction industry; specifically, for Little Davis Bacon Act projects where prevailing wages are required, compliance only applies to those projects bid after July 1, 2025.

Addressing Accrual

All employees, including temporary and part-time employees, begin accruing leave immediately upon hire at the rate of one hour per every 30 hours worked. While the law allows employers to choose to provide the entire leave entitlement upfront, this is rarely a wise option in any seasonal industry like construction. Employees must be permitted to carry over accrued leave from year to year; but regardless of how much leave is carried over each year, employers are not required to allow employees to use more than 56 hours in a given year. If an employee separates and is then rehired within six months, that employee’s leave bank must also be reinstated (unless the leave was paid out voluntarily upon separation).

Especially in Alaska’s busy construction season, many companies have required long pre-approval processes before any leave was approved during the season. This law changes that, and employers must permit their employees to use sick leave as it is accrued, even allowing same-day requests. Employers cannot request or require documentation of this leave unless an employee is absent for more than three consecutive full days. The only type of documentation an employer may request is a doctor’s note stating that the employee needed sick leave for specified dates/times.

In cases of domestic violence, sex assault, or stalking related absences, employers cannot request more than a written statement from the employee affirming that the leave was taken for a qualifying purpose. Because employees’ use of this leave is protected, employers cannot discipline or otherwise retaliate against employees for their use of this leave. That means that compliance becomes a management and training issue for employers; it doesn’t matter if you have the best policy in the world if your foreman is denying your employees’ leave requests improperly.

Seasonal Workers, Year-Round Considerations

As we enter the busy summer months, many employers may be soon onboarding a spate of temporary, seasonal employees who may permanently reside out of state. Many of these employees may work extremely long hours over a brief time span. However, the fact that these employees may only be on the payroll for a short time, work alternative schedules, or spend most of their time Outside does not modify employers’ obligations under this law. Employees with these types of employees should especially keep the following in mind:

If you currently offer a general PTO bank, consider tracking sick leave separately. This new type of leave offers many protections beyond normal “vacation leave” and employers should avoid extending those protections beyond what is required.
Remember that when seasonal employees separate at the end of the summer, you must maintain records of their accrued but unused leave. If you do not pay this leave out upon separation, and rehire these employees within six months, you must reinstate all of their leave. You also cannot force them to accept a payout of their accrued and unused leave entitlement, but this “carry over” requirement is eliminated if they voluntarily take the cash-out.
If you suspect that an employee is not using sick leave for a permissible purpose or on a person who may not truly be “family,” you may be tempted to challenge their request. Think twice before doing so—employers do not have much leeway to push back on employees’ explanations in this context.

Hopefully your company and employees will enjoy healthy, productive summers. However, if they (or their family members) do fall ill, heed the above to ensure that they can take the time they need to recover and return to work as soon as possible.

Mike O’Brien is a partner at the Alaska office of Davis Wright Tremaine. His practice focuses on employment and labor law, and he has been litigating on behalf of clients for over two decades, with more than sixty jury trials and frequent appearances before the National Labor Relations Board, the US Equal Employment Opportunity Commission, Alaska State Commission for Human Rights, the US Department of Education, and other federal and state administrative agencies. Mackenzie Olson is an associate at the Alaska office of Davis Wright Tremaine. Her practice primarily focuses on employment and labor law with an emphasis on litigation. She appears on behalf of clients in both federal and state court and has frequently appeared before federal and state administrative agencies including the National Labor Relations Board, federal Occupational Safety and Health Administration, Alaska State Commission for Human Rights, and the Anchorage Equal Rights Commission.

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