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NEBRASKA HEALTHY FAMILIES AND WORKPLACES ACT
The passage of Initiative 436 during the November 2024 election enacted the Nebraska Healthy Families and Workplaces Act (the “Act”), requiring all employers in the state of Nebraska to provide paid sick leave to employees. The Act was amended by the Nebraska Legislature during the 2025 Legislative Session with the passage of LB 415, introduced by Senator Beau Ballard (Lincoln). LB 415, as amended, includes LB 698, which was introduced by Senator Paul Strommen (Sidney). The combined measure amended the Act to provide significant “clean up” language and add a small business exemption for businesses with 10 or fewer employees. It also eliminated the private cause of action. The following is an overview of the Act as amended.
WHO MUST COMPLY
Employers with 10 or fewer employees are exempt from the requirements of the Act and are not required to provide paid sick leave benefits. All employers with 11 or more employees must comply with the Act and provide paid sick leave benefits and comply with all provisions of the Act. For the purposes of this Act, the number of employees is determined by the number of employees on payroll in each of twenty (20) or more calendar weeks in the current or preceding calendar year.
EMPLOYEES EXEMPTED
There are several specific types of individuals and work relationships that are not entitled to paid sick leave benefits under the Act and are not counted as employees for purposes of the threshold. These are:
· Individual owner-operators
· Independent contractors
· Individuals who work fewer than 80 hours in a calendar year in the state of Nebraska
· Individuals who are employed in agricultural employment of a seasonal or other temporary nature
· Employees who are subject to the federal Railroad Unemployment Insurance Act
· Individuals under sixteen (16) years of age
EFFECTIVE DATE AND NOTICE REQUIRED
Paid sick leave requirements under the Act begin October 1, 2025. Any paid sick leave provided to an employee between January 1, 2025, and October 1, 2025, counts toward an employer’s obligations under the Act.
Employers must provide written notice of the Act to employees by September 15, 2025, or the commencement of employment, whichever is later. Employers with a physical workplace must display a poster containing the information required in the notice. Enclosed is a poster from the Nebraska Department of Labor’s website.
ACCRUAL AND HOUR REQUIREMENTS
Employees under the Act begin accruing paid sick leave after 80 hours of consecutive employment, at which point employees shall then accrue a minimum of 1 hour of paid sick leave for every 30 hours worked. An employee may begin using paid sick leave as accrued. The number of employees an employer has determines the amount of paid sick leave that must be provided under the Act. An employer with at least 11 but fewer than 20 employees during a given week is considered a “small business” under the Act. This includes full-time, part-time, and temporary employees. Small businesses are required to provide accrual of at least 40 hours of paid sick leave in a year. Businesses with 20 or more employees are required to provide accrual of at least 56 hours of paid sick leave in a year. This does not prevent an employer from allowing employees to earn more than the Act requires. Additionally, employers may comply with the Act by offering the minimum hours of paid sick leave at the beginning of each calendar year.
Paid sick leave is compensated at the employee’s regular rate of pay at the time it’s used or paid out. An employer may carry an employee’s accrued paid sick leave forward or choose to pay it out to the employee at year end. However, even though an employee can accrue an unlimited amount of paid sick leave, employees are still capped at the number of hours they can use each year. Upon separation from an employee, the employer is not obligated to pay out unused sick time, regardless of how much time has accrued.
For employees paid on a commission, piece-rate, mileage, or fee-for-service basis, paid sick leave should be compensated similar to workers’ compensation. The hourly rate is determined by the employer using the average weekly rate calculation found at Neb. Rev. Stat. § 48-126, reduced to a 40-hour workweek.
CURRENT PAID SICK LEAVE PROGRAMS ALREADY OFFERED
An employer with an existing paid leave policy, including a combined paid time off (PTO) policy, that equals or exceeds the requirements of the Act, which may be used as paid sick leave, is not obligated to allow an employee to accrue or carryover benefits beyond the employer’s existing paid leave policy. Thus, businesses with a current vacation or PTO program with sufficient hours and accrual rates under the Act, do not need to offer additional benefits for compliance.
WHAT CAN PAID SICK LEAVE BE USED FOR?
Paid sick leave may be used by an employee for any mental or physical illness, injury, or health condition, whether it be for diagnosis, treatment, or preventive care for the employee or the employee’s family. Employees may use this time to attend meetings necessitated by a child’s mental or physical illness, injury, or health condition, at a school or place where the child is receiving care. Employees may also use paid sick leave:
· In the event of a closure of the employee’s place of business by order of a public official due to a public health emergency;
· To care for a child at home and without care due to such a public health closure; or
· To self-isolate or care for the employee or a family member when under an isolation order by a public official.
For the purposes of the Act, the definition of family member is extremely broad, and includes:
· A biological, adopted, or foster child, a stepchild, a legal ward, or a child to whom the employee stands in loco parentis;
· A biological, foster, step, or adoptive parent or a 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 employee’s spouse was a minor child;
· A person to whom the employee is legally married under the law of any state;
· A grandparent, grandchild, or sibling, whether of a biological, foster, adoptive, or step relationship, 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 the equivalent of a family relationship. Employees may use paid sick leave as it accrues. Paid sick leave must be usable to employees in hourly increments. Smaller increments must be offered in the smallest increment the employer’s payroll system allows.
NOTICE AND DOCUMENTATION
When requesting paid sick leave, an employee shall indicate the expected duration of the absence. An employer may require written notice prior to the usage of paid sick leave. If an employer requires written notice, the employer shall provide a written policy that contains reasonable procedures for employees to provide notice. If no such policy exists, the employer may not deny paid sick leave requests for failure to provide proper written notice.
Employers may not request documentation until an employee uses paid sick leave for more than 3 consecutive workdays. Reasonable documentation includes a signed document from a health care professional indicating the necessity of such absence. If a note from a health care professional is not available or the employee did not seek medical treatment from a health care professional, a written statement from the employee indicating the need for such paid sick leave is acceptable documentation.
TRACKING PAID SICK LEAVE
An employer is required to provide employees with a statement of the following on each regular pay period:
· Amount of paid sick leave available,
· Amount of paid sick leave taken, and
· Amount of pay the employee has received as paid sick leave.
This requirement can be satisfied with an online system to which the employees have access. At any time, you must be able to demonstrate to the Nebraska Department of Labor how many hours an employee worked, how much paid sick leave an employee accrues, and how much paid sick leave an employee was permitted to use.
Compliance with the Act is overseen by the Nebraska Department of Labor. With the passage of LB 415, there is no private cause of action for violations of the Act. Violations can be reported to the Department of Labor for investigation and/or action.
REPLACEMENT FOR MISSED SHIFTS
Employers are not allowed to require an employee to search for or find a replacement worker to cover the hours during which the employee is using paid sick leave.
ENFORCEMENT OF ABSENCE POLICIES
Employers are not allowed to count paid sick leave taken under the Act as an absence for the purposes of an internal absence control policy. Once an employee has exhausted all paid sick leave that he or she is entitled to, employers may then enforce their normal absence control policy.
VIOLATIONS
Following an investigation, the Department of Labor may issue a citation. Administrative penalties are capped at $500 for a first violation and $5,000 for a second or subsequent violation. It is important to note that employers have 15 working days from the date of the citation to contest the citation by giving notice to the Commissioner of Labor.
Employers with unpaid citations (this does not include contested violations that are pending review) are barred from contracting with the State of Nebraska or any political subdivision. The names of employers who have been issued a citation will be public information.
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