While Maine may have been the first state to pass a paid “any reason” leave law, Nevada was a close second. Just a few weeks after the Maine bill was signed, Nevada Governor Steve Sisolak yesterday signed a bill requiring private sector employers with at least 50 employees to allow employees to accrue paid leave which may be used for any reason. The Nevada law is effective January 1, 2020.
The architecture of the Nevada law is similar to that of a typical PSL law minus the definitions related to appropriate use (e.g., family member). Employees accrue .01923 hours of paid leave for each hour of work performed, which amounts to approximately 40 hours annually for an employee who works 40 hours weekly. An employer may limit an employee’s use of paid leave to 40 hours annually. Employees may carryover up to 40 hours of unused paid leave. An employer may choose to front load the leave or use the accrual method. Employers can require employees to use leave in a minimum of four-hour increments and must provide employees an accounting of available paid leave each payday. The law is here.
Temporary, seasonal and on-call employees are not entitled to accrue paid leave. In addition–and this is the provision I suspect many Silver State employers will focus on initially–the law does not apply to an employer who “pursuant to a contract, policy, or collective bargaining agreement, or other agreement, provides employees with a policy for paid leave or a policy for paid time off to all scheduled employees” at the same accrual rate in the law.
That a second state has enacted a PTO mandate suggests that this approach might be the next step in the evolution of PSL laws. A bill is also pending in New York City to require employers to provide employees with paid vacation in addition to the already required paid sick and safe time.
The Albany County (NY) City Council last night rejected a bill that would have required County employers with at least six employees to allow employees to accrue up to 40 hours of paid sick leave annually. The Council vote was 21-17. The bill had been introduced in March 2018.
The termination of a night shift employee who went fishing and boating while on FMLA leave did not violate the FMLA, according to a decision last week by a California federal district court.
The plaintiff had been approved for FMLA intermittent leave. He called out on FMLA for his night shifts on October 19, 20 and 21. The employer had previously denied a request by the plaintiff to take vacation on those three dates.
During the day on October 21, during hours the plaintiff was not scheduled to work, the plaintiff went with co-workers on a pre-planned boating trip. A co-worker made a video at the outing and posted it on Facebook. In the video, according to the decision, the plaintiff said “I’m not out here.”
When the plaintiff’s employer learned of the video, it investigated and then terminated plaintiff for dishonesty for improper FMLA use. In granting summary judgment to the employer, the court rejected the plaintiff’s arguments that the termination violated the FMLA because fishing and boating activities were not inconsistent with his medical condition and the trip did not conflict with his work shifts. The court concluded that the employee did not produce any evidence to suggest that the employer’s termination decision was based on anything but the employee’s dishonesty.
By the way, this is not my first fish story. See here.
Lawsuits involving inflexible leave policies always get my attention. I have been speaking and writing about such policies for decades. Last year, the EEOC sued Pilgrim’s Pride, alleging that it had violated the ADA by not modifying its attendance and leave policies to accommodate an employee with a disability. Earlier this month, the case was settled for $50,000 and other non-monetary relief.
In its press release about the settlement, an EEOC official stated that “Nearly 30 years after the enactment of the ADA, some employers are still enforcing inflexible attendance policies… This lawsuit is a reminder to employers they have an obligation to make exceptions to attendance policies and provide leave as a form of reasonable accommodation unless doing so would result in undue hardship.”
Underlying the EEOC’s inflexible leave position is the oxymoronic anomaly that an individual who cannot come to work is nonetheless a qualified individual with a disability, defined as one who can perform the essential functions of the position either with or without an accommodation.
Like the mission of the Starship Enterprise into the unknown, the Maine paid leave law boldly goes where no leave law has gone before by requiring employers to allow employees to accrue paid time off which may be used for any reason. If Democratic Governor Janet Mills, who supports the law, signs the Maine Earned Paid Leave Law or simply does not act on it, the law will be enacted within days. It applies to employers with at least ten employees and is effective on January 1, 2021. For reasons that are unclear to me, employees covered by a collective bargaining agreement are not entitled to leave under this law “during the period between January 1, 2021 and the expiration of the agreement,” which could be years after non-represented employees are receiving leave under the law.
Because of its “any reason” provision, the law is not technically a paid sick and safe leave law, though I will include it in my list of PSL resources. It is a PTO law which, I suspect, will have covered Maine employers revisiting their PTO policies.
While Maine may be first to enact an “any reason” earned leave law, it was not the first to consider such a law. In 2017, 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. Earlier this year, Presidential candidate NYC Mayor Bill de Blasio proposed legislation to make NYC the first city in the nation to require employers to provide employees paid vacation.
For those concerned that the Maine law 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 see a list of municipalities and perhaps even a few states that will be eager to follow Maine’s lead. Watch for bills to amend PSL laws to delete the often lengthy and specific “allowed uses” provision and replace it with two words: “any reason.”