Paid Sick Leave Quarterly: 1Q 2018

The vast and complex patchwork of PSL laws expanded in the first quarter of 2018 with the addition of a state law in Maryland and a local law in Austin, Texas.  The patchwork now has more than 40 laws: 9 state laws, the District of Columbia, 2 county laws and about 31 municipal laws.  This summary includes:

Paid Sick Leave Laws Effective in Q1

States

Other political subdivisions

  • New York City (amendment): New York City amended its Earned Sick Time Act to allow accrued time to be used for reasons related to domestic violence. The  renamed New York City Safe and Sick Time Law  is effective  May 7, 2018.
  • Seattle, WA (amendment). In December, Seattle amended its Paid Sick and Safe Time Ordinance “to incorporate the more generous provisions of voter-passed, Washington Initiative 1433 establishing statewide paid sick leave,” effective January 14, 2018.
  • Tacoma, WA (amendment). Tacoma amended its PSL law to align it more closely with the Washington PSL law, effective January 1, 2018.

Paid Sick Leave Laws Effective After Q1

Louvre Sculpture

Paid Sick Leave Bills Introduced During Q1

  • Alaska: House Bill No. 30, An act relating to the payment of sick leave by employers. (Introduced in 2017, the first year of a two-year legislative session.)
  • California: AB2841, to amend the existing PSL law by changing the requirements of the employer’s alternate sick leave accrual method and by increasing the sick leave accrual for in-home supportive services providers.
  • Connecticut, HB5044, to amend the existing PSL law by  reducing the workforce size of a covered employer and expanding  coverage from specified job titles to all non-exempt employees.
  • Georgia: HB 267, The Paid Sick Leave Act. (Introduced in 2017, the first year of a two year legislative session.)
  • Hawaii: HB4 and SB 425 (untitled)(carried over from 2017 regular session).
  • Illinois: HB 2771, Healthy Workplace Act. (Introduced in 2017, the first year of a two year legislative session.)
  • Indiana: House Bill No. 1183, Employee Paid Sick Leave; Senate Bill No. 113 “urges” the legislative council to have a committee study PSL.
  • Michigan: Senate Bill No. 212, the “paid sick leave” act.  (Introduced in 2017, the first year of a two year legislative session.) Also, possible PSL referendum in November 2018 (see Other PSL Developments to Watch, below).
  • Minnesota: SF 1794, Earned Safe and Sick Time Act. and HB 239, Working Parents Act. (Both introduced in 2017, the first year of a two year legislative session.)
  • Nebraska; LB844, Healthy and Safe Families and Workplaces Act.
  • New Jersey; AB 1827, an act concerning earned sick leave, passed the Assembly on March 26, 2018. Related bill S2171 pending in the Senate.
  • New York; SB2826, Paid Sick Leave Act. (Introduced in 2017, the first year of a two year legislative session.)
  • North Carolina: SB 556, H544, Healthy Families and Workplaces/Paid Sick Days;  Senate Bill 174/House Bill 238the Economic Security Act of 2017 (All bills introduced in 2017, the first year of a two-year legislative session.
  • Oklahoma: House Bill 1310,  and House Bill 1536, both  the Healthy Families and Workplaces Act.
  • Pennsylvania, SB 207/HB 701, Healthy Employee and Healthy Workplace Act
  • South Carolina: S. 361, the Earned Paid Sick Leave Act. (Introduced in 2017, the first year of a two-year legislative session.)
  • South Dakota, SB120, an act to require a minimum amount of PSL for employees.

Other political subdivisions

Paid Sick Leave Preemption Developments

Alabama: Marnika Lewis v.  State of Alabama et al. (11th Cir) (Case No.17-11009). In February 2017, a federal court judge rejected challenges to the Alabama Uniform Minimum Wage and Right-to-Work Act, which bars political subdivisions from requiring employers to provide employees with wages or “employment benefits” not required by federal or state law.  An“employment benefit” includes paid and unpaid leave. The plaintiffs have appealed to the U.S. Court of Appeals for the Eleventh Circuit.

Maryland: The Healthy Working Families Act, enacted in January over Governor Larry Hogan’s veto,  has a qualified preemption provision. It prohibits local jurisdictions from enacting a law regulating sick and safe leave but grandfathers in Montgomery County’s Earned Sick and Safe Leave Law.

Rhode Island: The Healthy and Safe Families and Workplace Act, passed in September, has a “uniformity” clause which prohibits municipalities from requiring employers to provide more paid sick and safe time than is required by this law.

Proposed federal bill: The Workflex in the 21st Century Act, introduced in the House of Representatives in November, 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 has been referred to U.S. House Committee on Education and the Workforce. A subcommittee held a hearing on paid leave policies in December.

Paid Sick Leave Litigation

 Challenges to state PSL laws

Massachusetts:  A railroad had argued that the Massachusetts Earned Sick Time Law (MESTL) was preempted by the Railroad Unemployment Insurance Act (RUIA), the Railway Labor Act and ERISA with regard to interstate rail carriers. The First Circuit held last June that the section of the MESTL dealing with benefits for an employee’s own medical condition was preempted by the RUIA. The court remanded the case to have the district court decide whether any other sections are preempted by the RUIA or the Railway Labor Act or ERISA and whether any sections of the MESTL survive as applied to interstate rail carriers. CSX Transportation, Inc. v. Healey  (1st Cir.  2017).

Washington: The Washington State Paid Sick Leave Act (WPSL) as applied to pilots and flight attendants is unconstitutional and preempted by the federal Airline Deregulation Act (ADA), according to a complaint filed  in February by the Air Transport Association of America, doing business as Airlines For America (A4A), an association of airline carriers.  The plaintiff claims that the WPSL violates both the “dormant” Commerce Clause and the Fourteenth Amendment of the Constitution. The dormant Commerce Clause is not a clause at all but the idea that implicit in the affirmative grant of authority to Congress to regular interstate commerce is an implicit restriction on the ability of state and local governments to impose an unreasonable burden on interstate commerce. The plaintiff also alleges that the Airline Deregulation Act (ADA) preempts the WPSL law because it relates to a “price, route or service of an air carrier,” because, for example, the WPSL “impedes A4A’s member airlines’ abilities to enforce attendance and reliability policies designed to ensure safe on-time and efficient operations.” 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).

Challenges to local PSL laws

Pittsburgh, PA: The Supreme Court of Pennsylvania has agreed to hear an appeal concerning the City of Pittsburgh’s authority to enact the Sick Days Act, which it enacted in August 2015. Last May, an appellate court affirmed a lower court’s decision that the city did not have the authority to enact it and invalidated the Act.  The lone dissenting judge said that Pittsburgh had the right to protect the health and safety of its residents and that the Sick Days Act  was an exercise of that right. 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….”Pennsylvania Restaurant and Lodging Ass’n v. City of Pittsburgh and Service Employees Int’l Union, Local 32 BJ. (Pa. Supreme Court, 227 WAL 2017).

Other Paid Sick Leave Developments To Watch

Michigan: The Board of State Canvassers  has approved the form of an initiative petition submitted by MI Time to Care to allow proponents to try to collect the required number of signatures to put the initiative on the November 2018 ballot.

Albuquerque, NM: After voters rejected a PSL bill last fall, a new PSL bill was introduced in the City Council in December 2017. The bill has been assigned to a finance committee.

San Antonio, TX: Proponents of a paid sick leave ordinance are collecting signatures to put the initiative on the November 2018 ballot.

On Labor Day 2015, then-President Obama signed Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors, which requires certain government contractors to provide certain employees with paid sick leave. The EO applies to certain government contractors who enter into certain government contracts after January 1, 2017. While there has been speculation about the plight of EO 13706 in the Trump administration, no steps have yet been taken to negate it and, unless and until it is voided, the EO is in effect.

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This report notes Q1 2018 developments in more than 25 jurisdictions.  It makes one look forward to Q2! All part of life’s rich paid sick leave pageant!