History of leave

With the passing of mandatory paid sick leave by the Maryland legislature in January 2018 the idea for this post began as a look at the history of sick leave in the American workplace. Research revealed the reason why there are paid leave advocates. Leave from work, whether for sick or personal, is a relatively new concept as it applies to the American workplace. Still, this is probably a good topic for a little background.

During the agriculture phase of the America people worked as the farm dictated. Once the Industrial Revolution arrived factories sprung up with no shortage of workers. People lined up waiting for jobs. Employers could set wages and hours are they saw fit. There was little to no regulation. People worked six days a week for pennies an hour in deplorable conditions. If you missed work you weren’t paid or lost your job. These conditions continued well into the 20^th century until a president floated a new concept.

Starting a conversation

The idea of employee paid leave in the United States started with President William Taft in 1910 who thought that workers should have three months of vacation per year. Congress never bought into it but the conversation was started. Sixteen years later the work schedule began to change. The Ford Motor Company was one of the first, if not the biggest, company to offer employees a five day, 40 hour workweek. The policy went into effect in may 1926 at the urging of Henry Ford’s son, Edsel, who thought every man needed more than one a day a week for rest.

By the 1930’s, countries around the world had begun adopting paid time off for employees. The U.S. Department of Labor took up the fight again creating the Committee of Vacations with Pay to study why the U.S was so far behind the rest of the industrialized world. Nothing came from this committee.

It would be sixty some years later before the U.S government made significant changes. In 1993 the passage of the Family Medical Leave Act (FMLA) mandated twelve weeks of unpaid time off for workers to attend to their own or a family members medical issues. Leave from work agreements were, and still are, between employer and employee with no mandate for payment. While FMLA provided for leave without retribution from employers, the leave was still unpaid.  

There is not a statutory requirement for paid vacation in the U.S. Individual employers decide on what leave and type of leave to offer employees. Employer’s decisions on leave run the spectrum. A few companies are experimenting with unlimited leave while the majority offer some sort of paid time off. There are still small percentages that offer no leave.

Regarding statutory paid sick leave, currently nine U.S. states mandate it (Arizona, California, Connecticut, Maryland, Massachusetts, Oregon, Rhode Island, Vermont, and Washington). Expect that number to grow in the coming years.

Please share this and any post. See the blog archive for other posts about employee benefits.

Smoke 'em if you got 'em? August 2017

Employee implants July 2017

What's in your wallet? May 2017

Workplace monitoring May 2016

Overtime history May 2016

Health history discrimination

What an employer asks on employment applications regarding criminal history and how it is used, has long been scrutinized by the Equal Employment Opportunity Commission (EEOC). In recent years when an employer asks about criminal history has been at issue (Should the box be banned, February 4, 2013). Employers are also getting caught on health history questions, although the EEOC has been monitoring that form of discrimination for over twenty years.

EEOC and ADA

The Civil Rights Act of 1964, Title VII, made it illegal to discriminate based on race, color, religion, sex, or national origin. The EEOC was created in 1965 to enforce the Civil Rights Act but had to authority. In 1972, Congress gave the EEOC litigation enforcement authority. The American with Disabilities Act was passed in 1990 and the EEOC was given enforcement authority over Title I of the Act, which includes the employment discrimination provisions. The ADA places restrictions on employers regarding asking job applicants to answer medical questions.

EEOC v. Grisham Farm Products, Inc.

In a recent case the EEOC, on March 22, 2016, filed suit in the United States District Court against Grisham Farm Products, Inc. alleging that its employment application violated the ADA. (Equal Employment Opportunity Commission v. Grisham Farm Products, Inc. 16-cv-03105)

In the case, an applicant applied for a warehouse position at Grisham. The Grisham job application contained forty-three “yes or no” health related questions. The questions were similar to what would be seen on an initial doctor visit. The Grisham application inquired whether in the past ten years the applicant has had allergies, arthritis, bladder infections, eating disorders, gallstones, sexually transmitted diseases, etc. The application also inquired about prior hospitalizations, HIV infection, treatment for alcoholism, and whether the applicant consulted a doctor, chiropractor, therapist, or other health care provider in the past two years.

The application’s Health History section stated in large letters, “All questions must be answered before we can process your application”. The applicant did not answer all of the questions and telephoned Grisham Farm. A company representative said that if the health history section was not fully completed, it would not be accepted.

The EEOC claims that the applicant believed he did not have to reveal his medical history to any potential employer. The case is still in litigation.

Review your hiring process

Employers should be frequently reviewing their hiring process. They also need to follow EEOC decisions as these decisions occur frequently and affect the hiring process. As with questions regarding criminal history, there are parameters as to what health questions can be asked and when they can be asked. The EEOC is clear that pre-employment health inquiries can be made only after a conditional offer has been made, if the inquiries are made to all applicants for that job category, and the inquiries are job related and consistent with a business necessity.



May 9, 2016-The EEOC released it's latest guidance on leave as a reasonable accommodation under the ADA. Employer-Provided Leave and the Americans with Disabilities Act