Are Seasonal Employees Eligible for Paid Leave?

Are seasonal employees eligible for paid leave?

It’s that time of year again. School is out, summer is here … many seasonal jobs are available and high school and college kids are looking for work.

Employers who hire seasonal workers – those hired into a short-term position – need to be aware of which laws apply to these seasonal, temporary and part-time workers. And this includes paid leave. Are they eligible for paid sick leave? What about COVID-19 paid leave?

State Paid Sick Leave Laws and Seasonal Employees

Sixteen states — plus Washington, D.C. — have enacted paid sick leave laws. (New Mexico is included in this number but keep in mind, its paid sick leave law does not go into effect until July 1, 2022.)

Whether these paid leave laws apply to seasonal workers varies by jurisdiction and employers should determine if the law applies to their company. Employers have several items to consider.

First, the laws all have different waiting periods applicable before the employee may use any accrued paid sick leave.

Second, the length of time the seasonal worker is employed may also determine whether the employee would effectively be able to utilize any paid sick leave accrued under the law. An employee hired for three summer months a season in a jurisdiction with a 120-day waiting period before they can use paid sick leave may not be able to use any paid sick leave before their seasonal position ends.

Third, there are also reinstatement provisions that may be applicable if an employer rehires the same seasonal employee several years in a row. Many paid sick leave laws require the employer to reinstate accrued, unused paid sick leave if they rehire an employee within a certain time period. So, for example, if the law requires an employer to reinstate accrued, unused paid sick leave if an employee is rehired within 12 months, that seasonal worker let go on Sept. 1 the prior year and rehired on June 1 the following year is entitled to reinstatement of the paid sick leave accrued and unused the prior summer.

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States With Exemptions for Seasonal Workers

Maine, Maryland, Nevada, Rhode Island and Vermont have exceptions that may exclude certain seasonal workers from receiving paid leave.

Maine

Maine’s paid sick leave law exempts seasonal employees defined by the Employment Security Act from its paid sick leave law. A list of seasonal industries and their seasonal periods can be found on the state’s website.

Maryland

Maryland has many exemptions from its paid sick leave law, including employees who work less than 12 hours per week and temporary employees. Employers should understand the various exemptions in the Maryland paid sick leave law to confirm whether the law applies to their employees.

Nevada

Although Nevada’s paid sick leave law applies to part-time workers, it does not apply to seasonal employees who work less than 90 days in a benefit year.

Rhode Island

Rhode Island’s paid sick leave law does not apply to some workers who may be considered seasonal workers.

A covered employee under the state’s law, for example, does not include domestic service employees, certain employees or volunteers of educational, charitable, religious or nonprofit organizations, newspaper delivery, shoe shiners, caddies, pin persons in bowling allies, ushers in theatres, minors working for family business, resort establishments open from May 1 to Oct. 1, and employees of camps operating fewer than seven months out of the year.

Vermont

Vermont’s paid sick leave law generally would not apply to a seasonal worker for a couple of reasons.

First, the waiting period before sick leave is eligible for use is one year of employment. Vermont’s law also exempts certain individuals from the definition of covered employee, which may impact seasonal workers. For example, individuals who work fewer than 20 weeks in a 12-month period are exempt from the paid sick leave law, as are employees under 18 years of age.

State Paid Sick Leave Requirements

The following state paid sick leave laws apply to seasonal workers assuming all eligibility requirements are met, and the seasonal worker does not fall under one of the above referenced exemptions.

Arizona

All employees in Arizona are entitled to accrue one hour for every 30 hours worked. The law applies to private employers in Arizona. Employees may use paid sick leave on the 90th day after start of employment and may use it for COVID-19-related reasons.

If the employer rehires the worker within nine months of his or her separation date, all accrued, unused paid sick leave the employee had as of their separation date must be reinstated.

California

All employees who work at least 30 or more days within a year for an employer in California are eligible to accrue one hour for every 30 hours worked. The law applies to all employers in California.

Employees may begin using accrued paid sick leave on the 90th day of employment. Paid sick leave may also be used for COVID-19 reasons.

If an employer rehires an employee within one year of separation, all accrued, unused paid sick leave the employee had as of their separation date must be reinstated.

Colorado

All employees in Colorado who work for an employer with 16 or more employees are eligible to accrue one hour paid sick leave for every 30 hours worked. The law currently applies to employers with 16 or more employees.

There is no waiting period for an employee to use accrued paid sick leave. Employees may use paid sick leave as it is accrued and may use it for COVID-19 related reasons.

If the employer rehires the employee within six months, all accrued, unused paid sick leave the employee had as of their separation date must be reinstated to the employee.

Connecticut

In Connecticut, employees who work at least 10 hours per week for an employer in the most recent complete quarter are eligible to accrue one hour of paid sick leave for every 40 hours worked. The law applies to employers with 50 or more workers in Connecticut.

Employees are eligible to use accrued paid sick leave once they have completed 680 hours of employment. Employees are not entitled to reinstatement of unused accrued paid sick leave if they are rehired by the same employer.

District of Columbia

In the nation’s capital, employees whose primary work time (50 percent or more) is in D.C., have been employed by the same employer for one year with no break in service, and have worked at least 1,000 hours in the past year are eligible to accrue paid sick leave at a graduated rate depending on the size of the employer.

• Employers with 100-plus employees must provide one hour paid sick leave for every 37 hours worked
• Employers with 25-99 employees must provide one hour paid sick leave for every 43 hours worked
• Employers with 24 or fewer employees must provide one hour paid sick leave for every 87 hours worked

Restaurant and bar employees who regularly receive tips, commissions, or other gratuities to supplement a base wage should accrue one hour paid sick leave for every 43 hours worked.

The law applies to all private employers and the D.C. government. Employers may impose a 90-day waiting period after start date before employees may use their paid leave. Paid sick leave may be used for COVID-19-related reasons.

If the employer rehires the employee within one year of separation, all accrued, unused paid sick leave the employee had as of their separation date must be reinstated to the employee.

Maine

Employees who work more than 120 days in a calendar year and work for an employer with more than 10 employees are eligible to accrue one hour paid sick leave for every 40 hours worked in Maine.

Seasonal work is exempted from the law.

Maine law allows for a 120-day waiting period before an employee may use paid sick leave. Paid sick leave in Maine may be used for COVID-19-related reasons. Employers must reinstate unused, accrued sick leave to employees rehired within one year of separation.

Maryland

Maryland’s paid sick leave law applies to all employees — unless they fall under one of the numerous exemptions. The law specifically does not apply to employees who regularly work less than 12 hours a week for the employer.

Employers should be aware of the various exemptions in this law if they hire seasonal or temporary workers. Eligible employees accrue one hour paid sick leave for every 30 hours worked.

The law applies to employers with 15 or more workers, including state and local government. The waiting period before an employee may use accrued paid sick leave is 106 days of employment. Maryland has been silent on whether COVID-19 reasons are eligible. However, some of the COVID-19 reasons may fit under the eligible reasons for leave, which include being off work due to employee’s or family member’s illness, including preventive care.

Massachusetts

Employees whose primary place of work is in Massachusetts, regardless of employer’s location, are eligible to accrue one hour paid sick leave for every 30 hours worked. This applies to employers who employ 11 or more employees. Paid sick leave is eligible for use after 90 days of employment. Massachusetts issued guidance that its paid sick leave may be used for COVID-19 related reasons.

Employers who rehire employees within four months of separation should reinstate an employee’s unused accrued paid sick leave at the time of separation. If an employee is rehired between four and 12 months after separation, the employer only needs to reinstate the employee’s unused accrued paid sick leave prior to separation if the employee’s accrued unused paid sick leave was 10 hours or more.

Michigan

Michigan paid sick leave applies to all employees working for an employer with 50 or more employees, excluding government or political subdivisions. Employees must accrue one hour paid sick leave for every 35 hours worked. Paid sick leave is eligible for use on the 90th calendar day after start of employment.

Michigan does not require any reinstatement of unused, accrued paid sick leave upon rehire of a prior employee. Michigan issued guidance that COVID-19-related reasons are eligible reasons to take paid sick leave.

Nevada

Full- and part-time employees who work for a private employer with 50 or more workers in Nevada must accrue .01923 hours paid sick leave for every hour worked. Its law does not apply to seasonal workers who work fewer than 90 days per benefit year. Paid sick leave may be used on the 90th calendar day of employment and may be used for COVID-19-related reasons.

Nevada requires that employees rehired within 90 days of separation must have any accrued, unused paid sick leave reinstated.

New Jersey

Employees who are employed by a private employer in New Jersey are eligible to accrue one hour paid sick leave for every 30 hours worked. Paid sick leave may be used on the 120th day after start of employment. New Jersey has issued guidance that COVID-19-related reasons are eligible reasons to take paid sick leave under their law.

If an employee is rehired within six months of separation, the employer must reinstate any unused, accrued paid sick time.

New Mexico

New Mexico’s paid sick leave law goes into effect July 1, 2022. The law applies to all employees and employers in New Mexico. Employees must accrue one hour of paid sick leave for every 30 hours worked.

Paid sick leave is eligible to be taken on the 60th day after July 1, 2022. If an employee is rehired within 12 months of separation, previously accrued, unused earned sick leave must be reinstated.

New York

All employees in New York, except those governmental agencies, must accrue one hour paid sick leave for every 30 hours worked. There is no waiting period required under the law before paid sick leave may be taken.

New York has a separate COVID-19 paid sick leave law that also may apply to seasonal workers assuming all eligibility requirements are met.

The state does not require reinstatement of unused, accrued paid sick leave for employees rehired.

Oregon

All employees (with a few exemptions) who work for an employer with 10 or more employees in Oregon must accrue one hour paid sick leave for every 30 hours worked. Employees are eligible to use paid sick leave on the 91st calendar day of employment. Oregon issued guidance that paid sick leave may be used for COVID-19-related reasons.

Employers must reinstate unused, accrued paid sick leave to employees rehired within 180 days of separation. If the employee was separated before the 91st day of employment, the employee’s status regarding the waiting period before use of paid leave begins where they left off at the time of separation.

Rhode Island

Rhode Island’s paid sick leave law applies to all employees working primarily in Rhode Island for a private employer regardless if employer is located in the state. Employees must accrue one hour paid sick leave for every 35 hours worked.

There are several exemptions that may apply to seasonal workers.

A covered employee does not include domestic service employees, federal and local municipal employees, certain employees or volunteers of educational, charitable, religious or nonprofit organizations, certain employees licensed to practice nursing, newspaper delivery, shoe shiners, caddies, pin persons in bowling allies, ushers in theatres, traveling salespersons, minors working for family business, resort establishments open from May 1 to Oct. 1, employees of camps operating fewer than seven months out of the year, independent contractors, subcontractors, work study participants, apprenticeships and interns.

Employees may begin using paid sick leave on the 91st day of employment and it may be taken for COVID-19 related reasons. Employees rehired within 135 days of separation must have their previously accrued, unused paid sick leave reinstated.

Vermont

Employees who work an average of 18 hours per week in a year for an employer doing business in Vermont must accrue one hour paid sick leave for 52 hours worked.

Some exemptions to a covered employee may impact eligibility for some seasonal workers. Employees do not include, for example, an individual who is employed for 20 weeks or less in a 12-month period, or an individual under 18 years of age.

The waiting period before paid sick leave is eligible for use in Vermont is one year of employment. Employees rehired within 12 months of an involuntary discharge are entitled to resume where they left off in the waiting period requirement. They are not entitled to any reinstatement of accrued and unused paid sick leave.

Vermont paid sick leave may be used for COVID-19 related reasons.

Washington

Generally, employees working for private employers in Washington are eligible for one hour of paid sick leave for every 40 hours worked.

Paid sick leave may be used on the 90th calendar day after start of employment and may be taken for COVID-19 related reasons.

Employees rehired within 12 months of separation must have their accrued unused paid sick leave at separation reinstated and their prior period of employment counted toward determining waiting period before use of leave.

Conclusion

Are seasonal employees eligible for paid leave? Generally, most paid sick leave laws apply to seasonal workers. However, whether seasonal workers will be able to actually utilize paid sick leave before their seasonal position ends is the question.

Employers should be aware of the definition of a covered employee and covered employer in the jurisdictions requiring paid sick leave to ensure the law applies to the company and its employees.

Employers should also keep accurate records of accrued, unused paid sick leave. Know that in many of these jurisdictions, employers are required to apply accrued, unused sick leave to employees rehired within the applicable time frames in the jurisdiction. If you are rehiring the same workers season after season, this provision in the paid sick leave laws may apply to your company.

Finally, remember to pay attention to local paid sick leave laws. While not covered here, there are many. And, in some cases, they may require more generous benefits.

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.