November 20, 2024
By Julie Schumacher, Mark Fahleson, Tara Paulson
Rembolt Ludtke Employment & Labor Law Practice Group
On Tuesday, November 5, 2024, Nebraska voters passed an initiative titled the Nebraska Healthy Families and Workplaces Act (the “Act”) that will require many employers in the state to provide employees with paid sick time beginning October 1, 2025. The Q&A below is intended to guide employers regarding what the law requires in its current form.
However, there are many open issues, unanswered questions and nuances to the Act. We anticipate these open issues may be considered by the Nebraska Legislature in its session commencing in January that may result in revisions to the Act. We also may see guidance from the Nebraska Department of Labor to assist employers with compliance.
Q. What employers are covered by the Act?
A. The Act defines “employer” to include any individual, partnership, limited liability company, association, corporation, business trust, legal representative, or organized group of persons who employs one (1) or more “employees” (see definition of “employee" below).
Q. Are there any exceptions to the definition of “employer" under the Act?
A. Yes. “Employer” does not include the United States or the State of Nebraska or its agencies, departments, or political subdivisions.
Q. Who is an “employee” under the Act?
A. Any individual employed by an “employer” who works at least 80 hours in a calendar year.
Q. How much paid sick leave does an employer have to provide?
A. Employees shall accrue a minimum of one (1) hour of paid sick time for every thirty (30) hours worked. Employees shall not earn or use more than forty (40) hours of paid sick time in a year if the employer is a “small business”; or fifty-six (56) hours of paid sick time in a year if the employer is not a “small business.”
Q. So there’s a cap on how much paid sick leave an employee can accrue?
A. Yes. An employee stops accruing paid sick leave once the employee has accrued forty (40) hours of unused paid sick time if the employer is a “small business” or fifty-six (56) hours of unused paid sick time if the employer is not a “small business.”
Q. What employers qualify as a “small business?”
A. Employers with fewer than twenty (20) employees during a given week, including full-time, part-time, or temporary employees, qualify as a “small business.” A “small business” does not include an employer that maintained twenty (20) or more employees on its payroll in each of twenty or more calendar weeks in the current or preceding calendar year.
Q. So covered employers must provide paid sick leave for temporary employees too?
A. Potentially yes. Coverage of temporary employees depends upon how many hours the employee works. The Act does not require employers to provide paid sick leave to employees who work fewer than eighty (80) hours in a calendar year.
Q. How do I calculate paid sick time accrual for exempt employees?
A. Employees who are exempt from minimum wage and overtime requirements are assumed to work forty (40) hours in each workweek for purposes of paid sick time accrual unless their typical workweek is less than forty (40) hours, in which case paid sick time accrues based on that typical workweek.
Q. When does this paid sick time begin to accrue?
A. Paid sick time begins to accrue on October 1, 2025, or the commencement of employment, whichever date is later.
Q. Do employers have to use an accrual system?
A. No. An employer may provide all paid sick time that an employee is expected to accrue in a year at the beginning of the year.
Q. Can employers require the employee to forfeit accrued but unused sick time at the end of the year?
A. No. Employers have two options here: 1) Employers may allow accrued paid sick time to be carried over to the following year; or 2) In lieu of carryover, an employer may pay the employee for unused paid sick time. Employers who elect the second option must allow the employee to begin to accrue paid sick time at the rate set forth above at the beginning of the subsequent year.
Q. Can employers just allow employees to utilize the employer’s current PTO policy for paid sick time?
A. The Act provides that any employer with a paid leave policy, such as a paid time off policy, who makes available an amount of paid leave sufficient to meet the requirements of the Act that may be used for the same purposes and under the same conditions as paid sick time under the Act is not required to provide additional paid sick time.
Q. Are there any rules regarding rehired employees?
A. Yes. If an employee is separated from employment and rehired within one (1) year of separation, previously accrued paid sick time that had not been used must be reinstated.
Q. Under what circumstances may an employee use paid sick time?
A. Employees may use paid sick time for any of the following qualifying purposes:
Q. Who qualifies as an employee’s “family member?”
A. An employee’s family member includes: a spouse; child (biological, adopted, foster, or step), legal ward, or a child to whom the employee stands in loco parentis; parent (biological, adoptive, foster, or step), or legal guardian of an employee or an employee’s spouse; a person who stood in loco parentis to the employee or the employee’s spouse when the employee or the employee’s spouse was a minor child; a grandparent, grandchild, or sibling (biological, adoptive, foster, or step) of the employee or the employee’s spouse; or any other individual related by blood to the employee or whose close association with the employee is equivalent of a family relationship.
Q. Can an employer deny an employee’s request to use paid sick time if the employee fails to provide notice?
A. If an employer requires employees to provide notice of the need to use paid sick time, the employer must provide a written policy that contains reasonable procedures for employees to provide notice. An employer that has not provided to the employee a copy of such written policy shall not deny paid sick time to the employee based on noncompliance with such a policy.
Q. Can an employer require an employee who requests to use paid sick time to find a replacement to cover the employee’s hours during which the employee is using paid sick time.
A. No. The Act provides that an employer shall not require, as a condition of an employee’s taking paid sick time under this section, that the employee search for or find a replacement worker to cover the hours during which the employee is using paid sick time.
Q. Can an employer require employees who request to use paid sick time to provide a doctor’s note?
A. For use of paid sick time for more than three (3) consecutive work days, an employer may require “reasonable documentation” that the paid sick time has been used for a purpose covered by the Act.
Q. What is considered "reasonable documentation?”
A. “Reasonable documentation "includes: 1) documentation signed by a health care professional indicating that paid sick time is or was necessary; or 2) if the employee or a family member did not receive services from a health care professional, or if documentation cannot be obtained from a health care professional in reasonable time or without added expense, a written statement from the employee indicating that the employee is taking or took paid sick time for a qualifying purpose covered by the Act.
Q. What if employees are covered by a multiemployer collective bargaining agreement?
A. The Act provides that an employer signatory to a multiemployer collective bargaining agreement may fulfill its obligations under the Act by making contributions to a multiemployer paid sick time fund, plan, or program based on the hours each employee accrues pursuant to the Act while working under the multiemployer collective bargaining agreement, if the fund, plan, or program enables employees to collect paid sick time from the fund, plan, or program based on hours they have worked under the multiemployer collective bargaining agreement and for the purposes specified in the Act.
Q. Do employers need to have a written policy on this?
A. Yes. Employers must give employees written notice of at least the following items at the commencement of employment or by September 15, 2025, whichever is later:
Q. What is considered a “retaliatory personnel action?”
A. A “retaliatory personnel action” means a denial of any right guaranteed under the Act and any threat, discharge, suspension, demotion, reduction of hours or pay, or other adverse action against an employee for exercising or attempting to exercise any right guaranteed under the Act.
Q. Are there any other written notice requirements?
A. Yes. The written notice shall be provided in English and any language that is the first language spoken by at leave five percent (5%) of the employer’s workforce.
Q. Are there any posting requirements?
A. Yes. The Nebraska Department of Labor will create and make available to employers, in all languages spoken by at least five percent (5%) of Nebraska’s workforce, model notices and posters that contain the information required by the Act. Employers shall display such poster(s) in a conspicuous and accessible place in each establishment where employees are employed. If an employer does not maintain a physical workplace or an employee teleworks or performs work through a web-based or app-based platform, the employer shall provide notice of such information via electronic communication or a conspicuous posting in the web-based or app-based platform.
Q. What happens if an employee files a complaint with the Nebraska Department of Labor?
A. The Nebraska Department of Labor will conduct an investigation and issue a citation to the employer when an investigation reveals that the employer may have violated the Act. When a citation is issued, it will state the administrative penalty. The administrative penalty shall not be more than five hundred dollars ($500.00) in the case of a first violation and not more than five thousand dollars ($5,000.00) in the case of a second or subsequent violation.
Q. Can an employer dispute such citation?
A. Yes. An employer has fifteen (15) working days after the date of the citation to contest the citation or penalty. The Commission of Labor will provide a hearing in accordance with the Administrative Procedure Act.
Q. Can an employee file a lawsuit under the Act?
A. Yes. An employee having a claim for a violation of the Act may institute suit for legal or equitable relief in the proper court. If an employee establishes a claim and secures judgment on the claim, such employee shall be entitled to recover the full amount of the judgment and all costs of such suit, including reasonable attorney’s fees.
Q. Is there a statute of limitations on claims under the Act?
A. Yes. A civil action brought under the Act must be commenced no later than four (4) years after the cause of action accrues.
Employers are encouraged to consult with their employment and labor law counsel to review their leave policies and prepare to become compliant with Nebraska’s paid sick leave requirements next fall.
This article is provided for general information purposes only and should not be construed as legal advice. Those requiring legal advice are encouraged to consult with an attorney.
