Schools in Jefferson County Kentucky were closed yesterday because a third of the teachers had called out sick, according to a news report. This was the fifth day in the past two weeks that schools were closed due to widespread teacher absences.
With such repeated widespread absences, one might think health officials would be concerned about an epidemic. Not so in Jefferson County. Rather, the teachers have weaponized sick days by coordinating sickouts to protest some bills pending in the legislature. Somehow, the mantra that employees should not have to choose between a paycheck and their health does not seem to fit.
While Kentucky does not have a PSL law, such laws facilitate using sick days as a protest vehicle. Under every state and local PSL law, an employee need only report that he or she will not be at work due to illness. An employer cannot require medical substantiation that sick leave is being used for its intended purpose unless an employee calls out sick on at least three (and sometimes more) consecutive workdays. Intermittent protests, such as those in Jefferson County, easily negate that medical substantiation provision as a useful tool.
In PSL laws, not enough legislative ink has been spent addressing abuse of sick days. A provision allowing an employer to require medical documentation when it has cause to believe an employee is not using PSL for its intended purpose—regardless of the number of sick days the employee has used–is a good start.
Such a provision would recognize that sick day fraud is a fact of workplace life, would give an employer a tool to deal with it and would add to the overall integrity of a PSL law, unless PSL proponents also believe that no one should be forced to choose between a paycheck and a protest..
The Board of Trustees of the Village of Glenview last week opted in to the Cook County Earned Sick Leave Ordinance, effective July 1, 2019. The Glenview Board had opted out of the County PSL ordinance in June 2017, just weeks before its effective date. Glenview joins the villages of Northbrook, Wilmette and Western Springs as municipalities that had initially opted out before opting in.
The political change of heart in Glenview comes three months after the November 6 advisory ballot initiative in which nearly 90% of voters in municipalities that had opted out of the County law urged their municipality to enact a paid sick leave ordinance. Approximately 80% of the County’s municipalities have opted out of its Earned Sick Leave Ordinance. My “nix list” is here.
The agenda packet relating to last week’s meeting of Glenview’s Board of Trustees included an interesting bit of information about the enforcement of the County PSL ordinance. A comment in that packet notes that the County Human Rights Commission, which enforces the County’s PSL law, has stated that “to date there have been no claims filed by employees against Cook County employers regarding violations” of the Earned Sick Leave Ordinance.”
The Eleventh Circuit Court of Appeals last week decided to hear the challenge to Alabama’s minimum wage and employment benefits preemption law en banc, meaning that all of the Court’s judges will hear the case.
The triggering event for this preemption battle occurred in February 2016 when the City of Birmingham passed an ordinance increasing the minimum wage within the city. The next day, the state legislature responded by enacting the Uniform Minimum Wage and Right-to-Work Act, which prohibits a political subdivision from requiring an employer to provide any wage or “employment benefit” not required by federal or state law, including paid and unpaid leave. It also voided the Birmingham ordinance.
The plaintiffs challenged the preemption law, arguing that it was unconstitutional and violated the Voting Rights Act. In 2017, a federal district court rejected the plaintiffs’ challenges and dismissed the case. Last July, a three-judge panel of the Eleventh Circuit affirmed the dismissal of all but the plaintiffs “equal protection” constitutional claim. That panel held that the plaintiffs had plausibly alleged both that the law “burdens black citizens more than white ones” and that it was enacted with a discriminatory purpose. Last week’s order to hear the case en banc vacated the three-judge panel decision.
The case is Marnika Lewis et al v. State of Alabama et al. Docket No.17-11009 (11th Cir.)
The vast and complex patchwork of PSL laws expanded in Q4 with Michigan becoming the 11th PSL state. This summary includes:
- Austin Earned Sick Time Ordinance (October 1, 2018)(but enjoined pending outcome of litigation).
- New Jersey Earned Sick Leave Law (October 29, 2018).
- Michigan Earned Sick Time Act (March 31, 2019).
- Westchester Earned Sick Leave Law (April 10, 2019).
- San Antonio Earned Paid Sick Time Ordinance (August 1, 2019).
- Duluth Earned Sick and Safe Time Ordinance (January 2020).
- None, though some introduced previously are still pending.
Alabama: Marnika Lewis v. State of Alabama et al. (11th Cir) (Case No.17-11009)(11th Cir. July 25, 2018). The Alabama Uniform Minimum Wage and Right-to-Work Act bars municipalities from requiring employers to provide employees wages or “employment benefits,” including leave, unless required by federal or state law. It was passed the day after Birmingham increased the minimum wage within the city. The plaintiffs brought various race-based challenges to the Act, all of which were rejected by a federal district court last year. In July, the Eleventh Circuit affirmed the dismissal of all claims except the “equal protection” constitutional claim, holding that the plaintiffs have plausibly alleged both that the Act “burdens black citizens more than white ones” and that it was enacted with a discriminatory purpose. The court remanded that claim to the district court.
Texas: On opening day of the pre-filing season in the Texas Legislature, one of the pre-filed bills would preempt municipalities from adopting or enforcing any ordinance requiring an employer to provide paid sick leave to an employee. House Bill 222 also voids any ordinance that requires an employer to provide paid sick leave, such as the Austin and San Antonio PSL ordinances. The legislative session opened on January 8, 2019. If enacted, the bill would be effective September 1, 2019.:
Proposed federal bill: The Workflex in the 21st Century Act, introduced in the House of Representatives in November, 2017, would expand ERISA preemption to override the patchwork of paid sick leave laws for an employer which voluntarily adopts a written qualified flexible workplace arrangement” (QWFA) that provides the required minimum amount of “compensable leave” and offers employees at least one of the listed “workflex options.” The bill died with the end of the 115th Congress.
Challenges to state PSL laws
Massachusetts: The Railroad Unemployment Insurance Act (RUIA) preempts the Massachusetts Earned Sick Time Law (MESTL) in its entirety as it applies to interstate rail carriers, according to a decision in August by a Massachusetts federal district court on remand from the First Circuit. The First Circuit had held previously that the MESTL provision dealing with benefits for an employee’s own medical condition was preempted by the RUIA but remanded the case to have the district court decide whether any other sections of MESTL were preempted by the RUIA or the Railway Labor Act or ERISA and whether any sections of the MESTL can survive as applied to interstate rail carriers. CSX Transp. v. Healey, 861 F.3d 276 (1st Cir. 2017).
Massachusetts and Washington: The Massachusetts Earned Sick Time Law (MESTL) and Washington State Paid Sick Leave Act (WPSL) as applied to flight crew are unconstitutional and preempted by the federal Airline Deregulation Act (ADA), according to complaints filed by the Air Transport Association of America, an association of airline carriers. The plaintiff claims these state laws violate the dormant Commerce Clause–the implicit restriction on a state or local government’s ability to unreasonably burden interstate commerce–and the Fourteenth Amendment of the Constitution. The plaintiff also alleges that the Airline Deregulation Act (ADA) preempts the state PSL laws with regard to both flight crew and ground crew because they relate to a “price, route or service of an air carrier.” Air Transport Association of America, d/b/a Airlines For America v. Maura Healey in her capacity as Attorney General of the Commonwealth of Massachusetts (D.MA)(complaint filed 04/04/18); Air Transport Association of America, d/b/a Airlines For America v. The Washington Dep’t of Labor and Industries et al (W.D. WA)(complaint filed 02/06/18).
Challenges to local PSL laws
Pittsburgh, PA: The Supreme Court of Pennsylvania will decide whether Pittsburgh had authority to enact the Sick Days Act which it adopted three years ago. Last year, an appellate court affirmed a lower court decision that the city did not have the authority to enact it and invalidated the law. The appeal will focus on an interpretation of the Home Rule Charter Law, which limits the City’s authority to regulate business “except as expressly provided by statutes….” Oral argument in the Supreme Court occurred on October 23, 2018. Pennsylvania Restaurant and Lodging Ass’n v. City of Pittsburgh and Service Employees Int’l Union, Local 32 BJ. (Pa. Supreme Court, 57 WAP 2017).
Austin, TX: The Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA), the Texas Court of Appeals, Third District, ruled in November. The court’s ruling focused largely on whether the sick days under ordinance were a “wage.” Relying on dictionary definitions, the court held that the Ordinance establishes a wage and is thus preempted by the TMWA. The Austin PSL ordinance had been scheduled to go into effect on October 1, 2018 but its implementation had been enjoined pending the outcome of the litigation. The City of Austin, reportedly, intends to appeal to the Texas Supreme Court. Texas Ass’n of Business et al v City of Austin, Texas et al (TX Ct of Appeals, Third District, November 16, 2018).
Albany County, NY: The County’s Paid Sick Leave Act was introduced in March and referred to the Legislature’s Law Committee. There have been two public hearings. The Law Committee will revisit the proposal in 2019.
Cook County Earned Sick Leave Ordinance: More than 80% of the municipalities within Cook County had opted out of the County PSL ordinance. The Village of Wilmette, after opting out of the County PSL ordinance twice, opted back into it. The villages of Northbrook and Western Springs revoked their “opt out” of the County PSL ordinance earlier this year. More municipalities within Cook County are expected to reconsider their opt out decisions this year.
Albuquerque and Portland, ME. Either city could be the next to enact a PSL ordinance. After a multi-front, prolonged legal battle, Albuquerque voters in 2017 narrowly rejected a PSL bill. A more narrow bill is being debated in the legislature. In Portland, a PSL bill was introduced in 2017 and is wending its way through the legislative process.
All part of life’s rich paid sick leave pageant!
Note January 9, 2019 on your timeline of leave management history. Saying at a press conference yesterday that “New Yorkers need a break,” NYC Mayor Bill de Blasio proposed legislation to make NYC the first city in the nation to require employers to provide paid vacation to employees.
With a Democratically-controlled City Council, and the trend of requiring employers to provide paid time off for a variety of reasons, one has to handicap the likelihood of this bill passing as better than even.
For those concerned that this might open yet another patchwork in the paid leave mosaic, you are spot-on. One need not look too deeply into one’s crystal ball to develop a list of municipalities, and perhaps even a few states, that will be eager to follow NYC’s lead. Watch for guaranteed vacation bills to be introduced in other jurisdictions shortly.
The proposed law would require employers to provide 10 days of paid vacation annually to full time workers. When the text of the bill is available, I will provide further analysis.
While this would be the first law in the nation to guarantee paid vacation, it would not be the first time such a bill was proposed. Two years ago, Maryland Governor Hogan, faced with pressure to enact a PSL bill, proposed the Commonsense Paid Leave Act, which would have allowed employees to accrue paid time off that could be used for any reason. The legislature rejected the Commonsense approach and passed a PSL bill instead..
Michigan lame duck GOP Governor Rick Snyder on Friday signed into law the bill amending the recently enacted PSL law, putting the finishing touch on a two-step political ploy to have the legislature craft a PSL bill rather than have voters consider a bill crafted by PSL advocates. For the ploy to succeed, Governor Snyder needed to sign the bill before December 31, his last day in office. Governor-elect Gretchen Whitmer, a Democrat, takes office on January 1.
The legislature took the first step of the stratagem on September 5, 2018, when it passed the Earned Sick Time Act, which was slated to be presented to voters in November. The second step was to amend that law, which it did within the past few weeks. The amendment renames the PSL bill the Paid Medical Leave Act.
The stratagem represents a classic illustration of Miles’ Law which, in brief, states that ‘where you stand depends on where you sit.’ (see further discussion of Miles’ Law here). PSL proponents have accused the legislature of gutting the Earned Sick Leave Law and undermining democracy, or worse. They have threatened to challenge in court the legislature’s authority to amend the initial law. Proponents of the ploy argue that the Earned Sick Leave Law did not adequately consider or balance the interests of all constituencies, small business in particular and that the Paid Medical Leave Act does so.
The Paid Medical Leave Act makes many changes to the Earned Sick Time Act. Generally, by narrowing the definitions of employer, employee and family member, it reduces the number of employee eligible for the PSL benefit, which it also reduced.
Michigan is the eleventh state to enact a paid sick leave law.