Details

[Co Conspiritor]

https://www.dol.gov/agencies/whd/government-contracts/sick-leave


On September 30, 2016, the U.S. Department of Labor published a final rule to implement Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors. Executive Order 13706 was signed on September 7, 2015, and requires parties that enter into covered contracts with the federal government to provide covered employees with up to seven days of paid sick leave annually, including paid leave allowing for family care. The final rule describes the categories of contracts and employees covered by the Executive Order; the rules and restrictions regarding the accrual and use of paid sick leave; the obligations of contracting agencies, the Department of Labor, and covered Federal contractors under the Order; and the remedies and enforcement procedures to implement the Order’s requirements.

[Co Conspiritor]

Service Contracts
Under the Final Rule, both procurement and non-procurement contracts that are subject to the SCA and its
implementing regulations are subject to the Executive Order’s requirements.

Contracts for Concessions
The Final Rule defines the term “concessions contract” to mean a contract under which the Federal Government

grants a right to use Federal property, including land or facilities, for furnishing services. The term “concessions
contract” includes, but is not limited to, a contract whose principal purpose is to furnish food, lodging,
automobile fuel, souvenirs, newspaper stands, and/or recreational equipment, regardless of whether the services
are of direct benefit to the Government, its personnel, or the general public. The Final Rule thus extends
coverage of the Executive Order to all concession contracts with the Federal Government, including those
excluded from SCA coverage by regulations, such as concession contracts with the Federal Government to
operate souvenir shops or to provide food or lodging in national parks.
Contracts in Connection with Federal Property or Lands and Related to Offering Services for Federal
Employees, Their Dependents, or the General Public
To the extent that such agreements are not otherwise covered by the SCA, the Final Rule interprets this
provision as generally including leases of Federal property, including space and facilities, and licenses to use
such property entered into by the Federal Government for the purpose of offering services for Federal
employees, their dependents, or the general public.
Contracts that Are Not Covered by the Executive Order and the Final Rule
The Final Rule contains certain narrow exclusions from coverage for the following types of contractual
agreements: (1) grants; (2) contracts and agreements with and grants to Indian Tribes under Public Law 93-638,
as amended; (3) any procurement contracts for construction that are not subject to the DBA (i.e., procurement
contracts for construction under $2,000); and (4) any contracts for services, except for those otherwise expressly
covered by the Final Rule, that are exempted from coverage under the SCA or its implementing regulations.
The Final Rule also provides that the Executive Order does not apply to contracts for the manufacturing or
furnishing of materials, supplies, articles, or equipment to the Federal Government, including those subject to
the Walsh-Healey Public Contracts Act.
Employees Who Are Entitled to Paid Sick Leave Under the Executive Order
The Final Rule provides that the Executive Order applies to any person engaged in performing work on or in
connection with a contract covered by the Executive Order whose wages under such contract are governed by
the SCA, DBA, or Fair Labor Standards Act (FLSA), including employees who qualify for an exemption from
the FLSA’s minimum wage and overtime provisions. The Final Rule includes a narrow exemption from the
rule’s accrual requirements for employees who perform work duties necessary to the performance of a covered
contract (but who are not directly engaged in performing the specific work called for by the contract) and who
spend less than 20 percent of their hours worked in a particular workweek performing work in connection with
such contracts.
Collective Bargaining Agreements (CBA)
If a CBA ratified before September 30, 2016 applies to an employee’s work performed on or in connection with
a covered contract, and the CBA provides the employee with at least 56 hours (or 7 days) of paid sick time (or
paid time off that may be used for reasons related to sickness or health care) each year, the requirements of the
Executive Order and the Final Rule will not apply to the employee until the date the agreement terminates or
January 1, 2020, whichever is first

[Co Conspiritor]

If the CBA provides the employee with paid sick time (or paid time off that may be used for reasons related to
sickness or health care) each year, but the amount provided under the CBA is less than 56 hours (or 7 days), the
contractor must provide covered employees with the difference between 56 hours (or 7 days) and the amount
provided under the existing CBA in a manner consistent with the EO and Final Rule or the terms and conditions
of the CBA.
Contracting Agency Obligations
The Final Rule sets forth the responsibilities of executive departments and agencies that are parties to covered
contracts. These contracting agencies are responsible for ensuring that a contract clause setting forth the paid
sick leave requirements under the Executive Order is included in any new contracts or solicitations for contracts
covered by the Order. Contracting agencies are also responsible for withholding funds when a contractor or
subcontractor fails to abide by the terms of the applicable contract clause, such as by failing to provide the
required paid sick leave, and for forwarding any complaints alleging a contractor’s non-compliance with
Executive Order 13706 to the Wage and Hour Division (WHD).
Paid Sick Leave
Accrual
Under the Final Rule, employees accrue 1 hour of paid sick leave for every 30 hours worked on or in
connection with a covered contract. As to employees for whom contractors are not already required to keep
records of hours worked pursuant to the DBA, SCA, or FLSA (such as employees who are employed in a bona
fide executive, administrative, or professional capacity under FLSA regulations), contractors can use the
assumption that the employees are working on or in connection with covered contracts for 40 hours each week.
Contractors are also permitted to use an estimate of time their employees work in connection with (rather than
on) a covered contract as long as the estimate is reasonable and based on verifiable information.
The Final Rule also creates an option for contractors to provide an employee with at least 56 hours of paid sick
leave at the beginning of each accrual year rather than allowing the employee to accrue leave based on hours
worked.
Accrual is calculated, and employees are to be notified in writing of the amount of paid sick leave they have
available, at the end of each pay period or each month, whichever interval is shorter.
Maximum Accrual, Carryover, Reinstatement, and Payment for Unused Leave
The Final Rule provides that contractors may limit the amount of paid sick leave employees may accrue to 56
hours each year and must permit employees to carry over accrued, unused paid sick leave from one year to the
next. The Final Rule also allows contractors to limit the amount of paid sick leave employees have accrued to
56 hours at any point in time. Furthermore, contractors are required to reinstate employees’ accrued, unused
paid sick leave if the employees are rehired by the same contractor within 12 months after a job separation
unless contractors provide payment to employees for accrued, unused paid sick leave upon separation.
Contractors are not required to pay employees for accrued, unused paid sick leave at the time of a job separation
(“cash-out”); however, if they do provide cash-out, they will not be required to reinstate unused leave.
Use
The Executive Order explains that an employee may use paid sick leave for an absence resulting from: (i)
physical or mental illness, injury, or medical condition of the employee; (ii) obtaining diagnosis, care, or
preventive care from a health care provider by the employee; (iii) caring for the employee’s child, parent,
spouse, 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 need for diagnosis, care, or
preventive care described in (i) or (ii); or (iv) domestic violence, sexual assault, or stalking, if the time absent
3
from work is for the purposes described in (i) or (ii) or to obtain additional counseling, seek relocation, seek
assistance from a victim services organization, take related legal action, or assist an individual related to the
employee as described in (iii) in engaging in any of these activities. The Final Rule provides definitions of these
terms.
Under the Final Rule, contractors must allow employees to use paid sick leave in increments as small as one
hour (with a narrow exception for employees whose work makes it physically impossible to leave or return to
the job during a shift). Contractors may only limit the amount of paid sick leave an employee uses at once or
per year on the basis of how much paid sick leave the employee has available. When employees use paid sick
leave, contractors must provide them with the same regular pay and benefits they would have received if they
had not used the leave, except that they need not earn additional paid sick leave during that time.
Requests to Use Leave
Under the Final Rule, an employee’s request to use paid sick leave may be made orally or in writing. A leave
request must be made at least 7 calendar days in advance where the need for the leave is foreseeable, and in
other cases as soon as is practicable. A contractor is required to communicate any denial of a request to use paid
sick leave in writing, with an explanation for the denial—which cannot be based on whether the employee has
found a replacement worker or on the contractor’s operational needs.
Certification or Documentation of the Need to Use Leave
Under the Final Rule, a contractor may require certification only for absences of three or more consecutive full
days, and the employee must have received notice of the requirement to provide certification or documentation
before he or she returns to work. If paid sick leave is used for the physical or mental illness, injury, or medical
condition of the employee; obtaining diagnosis, care, or preventive care from a health care provider by the
employee; or caring for the employee’s child, parent, spouse, domestic partner, or any other individual related
by blood or affinity, certification must be issued by a health care provider. If the paid sick leave is used for an
absence resulting from domestic violence, sexual assault, or stalking, documentation could be from a health care
provider, counselor, representative of a victim services organization, attorney, clergy member, family member,
or close friend; and self-certification is also permitted. Records relating to medical histories shall be maintained
as confidential records, and contractors are prohibited from disclosing any verification information and are
required to maintain confidentiality about domestic abuse, sexual assault, or stalking, unless the employee
consents or when disclosure is required by law.
Interaction with Other Laws and Paid Time Off (PTO) Policies
The Final Rule explains how the paid sick leave requirements interact with contractors’ obligations under other
laws. It explains that a contractor may not use paid sick leave required by the Order and Final Rule toward the
fulfillment of its SCA or DBA obligations. It also explains that a contractor’s obligations under the Executive
Order and Final Rule have no effect on its obligations to comply with, or ability to act pursuant to, the Family
and Medical Leave Act (FMLA); paid sick leave may be substituted for (that is, may run concurrently with)
unpaid FMLA leave, and all notices and certifications that satisfy FMLA requirements will satisfy the request
for leave and certification requirements of the Final Rule. With respect to state or local paid sick time laws, the
Final Rule explains that contractors must comply with both any such law that applies as well as the Order and
Final Rule, but contractors may satisfy their EO obligations by providing paid sick time that also fulfills the
requirements of a State or local law provided that the paid sick time is accrued and may be used in a manner
that meets or exceeds all of the requirements of the EO and Final Rule. Where the requirements of an
applicable state or local law and the Final Rule differ, satisfying both will require a contractor to comply with
the requirement that is more generous to employees.
The Final Rule also explains that a contractor’s existing PTO policy can fulfill the paid sick leave requirements
of the Executive Order as long as it provides employees with at least the same rights and benefits as the Final
4
Rule requires. In other words, if a contractor provides 56 hours of PTO that meets the requirements described in
the Order and the Final Rule but employees can use the leave for any purpose, the contractor does not have to
provide separate paid sick leave even if an employee uses all of the time for vacation. The Final Rule also
addresses PTO policies that provide more than 56 hours of leave: a contractor may choose to either (1) provide
all PTO used for the purposes described in the Final Rule in compliance with all of the rule’s requirements or
(2) track, and make and maintain records reflecting, the amount of paid time off an employee uses for the
purposes described in the rule, in which case the contractor need only provide, for each accrual year, up to 56
hours of PTO the employee requests to use for such purposes that complies with the rule’s requirements, such
as for certification, documentation and recordkeeping.
Multiemployer Plans
The Final Rule also permits a contractor to fulfill its obligations under the Order jointly with other contractors
who make contributions to a multiemployer plan (maintained pursuant to one or more CBAs) on behalf of
employees who receive access to paid sick leave that complies with the Order.
Enforcement Procedures
Under the Final Rule, complaints may be filed with the WHD by any person or entity that believes a violation
of the Executive Order or its implementing regulations has occurred. The Final Rule contains a mechanism for
WHD investigations and informal complaint resolution, as appropriate; it also specifies remedies and sanctions
for violations of the Executive Order and its implementing regulations, including the payment of damages and
debarment. The Final Rule also includes an administrative process, including administrative hearings, to resolve
disputes of fact or law.
For additional information, visit our Wage and Hour Division Website, www.wagehour.dol.gov, and/or
call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone,
1-866-4-USWAGE (1-866-487-9243)

[Co Conspiritor]

Since when did the Post Office Overrule and Executive Order ?


Re: Executive Order 13706 (Establishing Paid Sick Leave for FederalContractors)
Dear David:
Tom Marshall, Executive Vice President and General Counsel, has asked me to respond to your
June 21 ,2017 email message concerning Executive Order (EO) 13706, issued September 7 , 2015,
mandating paid sick leave for certain federal contract employees, as well as the recently published
Department of Labor (DOL) regulations implementing the EO, 29 C.F.R Part 13 (81 Fed. Reg.
67598) (September 13, 2016).
As we previously discussed, our position is that the EO does not apply to the United States Postal
Service, and likewise the DOL regulations implementing the EO are not applicable to the Postal
Service or its contractors. The statutory authority cited by the EO is 40 U.S.C. S 121, the Federal
Property and Administrative Services Act of 1949. That portion of Title 40 does not apply to the
USPS under the Postal Reorganization Act ("PRA'). See 39 U.S.C. S 410(b), which enumerates the
laws relating to government contracts that are applicable to the Postal Service; those laws do not
include 40 U.S.C. S 121.
We are undertaking efforts to reach out to DOL and to our contractors to advise them of our views
and the basis for our position.[/b]