With each new paid sick leave law—we are now up to forty—the compliance challenge for employers grows. Those tracking PSL developments must have a sense of each applicable PSL law and some basis for assessing which laws or provisions are more favorable or less favorable to employers or employees.
While many organizations publish summaries of a PSL law, the lack of consistency in the structure of those summaries leaves it to the reader to sort through the summary, pull out what matters, synthesize it and incorporate it into his or her PSL understanding. This asks too much of the reader. There must be a more efficient way, but what is it?
How to respond to that question has been marinating in my mind for some time. I have reached a point where I am prepared to propose my “PSL-4Step” to the leave management community for its consideration. The goal of the PSL-4Step is to be a framework for analyzing any PSL law in a consistent, methodical and efficient manner and to provide a basis for comparing that PSL law to other PSL laws, at least generally. It can also provide a framework for drafting a PSL policy or incorporating such a policy into a leave management program. Here are the four steps:
Step 1: Does the PSL law apply?
Step 2: What is the PSL benefit?
Step 3: How does the PSL law deal with the “common clauses”?
Step 4: Are there any unique provisions in this PSL law?
Let’s take them one at a time.
Step 1 addresses the threshold issue of whether the PSL law applies to the employer and employee. Making this determination typically involves reviewing:
- The definition of employer and employee and exemptions from those definitions;
- Any provision relating to employees covered by a labor contract, if applicable.
If the PSL law does not apply, the inquiry ends. If it does apply, we move to Step 2.
Step 2 addresses the PSL benefit the employer must provide. Making this determination typically involves answering the following questions:
- What is the PSL accrual rate for employees (both exempt and non-exempt)?
- When does the accrual begin?
- When can the employee first use accrued PSL?
- What happens to accrued but unused PSL, e.g. carryover and rehire rules?
- At what rate is PSL paid?
- Are there alternatives to the accrual method, e.g. frontloading?
- For what purposes can PSL be used?
- What is the minimum PSL increment an employee can use?
Step 3 addresses what I call “common clauses” that relate to administration of the PSL program. The “clauses” listed below are in all or nearly all of the PSL laws although the substance of the clauses varies, sometimes widely. These clauses include:
- Definition of family member
- Employer and employee notice requirements;
- An employer’s ability to require documentation to support the use of PSL;
- An employer’s PSL obligations to a terminated or rehired employee;
- The interaction between the PSL law and the employer’s existing leave policies;
- The relationship of the PSL law to other leave laws and agreements;
- Employer conduct prohibited against employees who use PSL;
- An enforcement mechanism.
Step 4 is the “catch-all” for any provision in a PSL law that is either unique or simply not common enough to qualify as a common clause. For example, only a few PSL laws specifically prohibit abuse of sick leave and define “abuse.”
Of course, the PSL-4Step is not a substitute for reading the law and the supporting resources or seeking legal advice. I anticipate that the PSL-4Step framework will evolve. Comments are quite welcome.
In later blog posts, I will elaborate on each of the steps. For any new PSL laws, such as those recently passed in Arizona and Washington, I will use the PSL-4Step framework of analysis. The menu bar of my blog will have a “PSL 4-Step” link so that the framework is readily available.