Paid Leave to Care for a Sick Dog?

Should an employee be forced to choose between caring for a sick dog and a paycheck? An employer in Italy recently allowed an employee to use paid time off to care for her sick dog and the issue has been getting much media attention.

Must an employer in a jurisdiction with a PSL law allow an employee to use paid time to care for a sick dog?

brie

The Emeryville, CA PSL law is the only PSL law that specifically mentions dogs. It allows employees to use sick time “to aid or care” for the employee’s or a family member’s “guide dog, signal dog, or service dog…”.

Elsewhere, any argument that a PSL law grants paid time off to care for a sick dog would likely focus on the definition of “family member” or “household.”

Is man’s best friend a family member? Many dog owner surveys provide an overwhelming “yes” response but the definition of that term in some PSL laws includes the word “person” or “individual,” which would seem to exclude dogs. In other PSL laws, the definition of “family member” does not include any reference to “person” or “individual.” For example, the Chicago Paid Sick Leave Ordinance states that employees may use PSL time if “a member of his or her family is ill or injured, or to care for a family member receiving medical care, treatment, diagnosis or preventive medical care.” The [20% of] Cook County Earned Sick Leave Ordinance has similar language.  Perhaps one can argue that in a PSL jurisdictions that doesn’t specify that a family member be a person or individual, man’s best friend is a family member. A bit of a stretch, no doubt.

Perhaps a better possibility deals with the definition of “household.” The Minneapolis Paid Sick and Safe Time Ordinance, for example, includes “members of the employee’s household” within the definition of “family member.”   A household is generally defined as all of the occupants living together as a unit. Is the family dog part of an employee’s household? If so, an employee might claim he or she can use PSL time to care for a sick dog.

Even if time to care for a sick dog is not covered by a PSL law, as a practical matter, it would not be difficult for an employee to take time off due to the stress of having a sick dog since an employer may not ask the medical reason for the employee’s absence and cannot require medical documentation unless the employee is out at least three days under most PSL laws.  Of course, an employee might also be able to use any of the employer’s paid time off policies such as vacation, personal days or PTO to care for a sick dog.

I have not yet seen a case in which an employee requests PSL time to care for a sick dog but, given the media attention to the situation in Italy, I suspect one will be coming soon.

The Demise of the Oxymoronic Anomaly of Leave as a Reasonable Accommodation

The oxymoronic anomaly underlying the EEOC’s position concerning inflexible leave policies has troubled me for years.  I first wrote about it in 2010, here. The recent Seventh Circuit Severson decision rejecting that inflexible leave theory destroys that oxymoronic anomaly and restores integrity to the definition of the word “can.”  Let me explain.

Under the ADA, a qualified individual with a disability is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” (emphasis added) The EEOC’s view is that an inflexible leave policy violates the ADA because it does not allow consideration of additional leave as a reasonable accommodation.

But how does an individual who cannot even come to work satisfy the requirement that he/she can perform the essential functions of the position if granted an accommodation of more leave? How is one who “cannot” also one who “can”?

11971487051948962354zeratul_help-svg-med

A few courts have recognized this anomaly. “When a period of leave from a job may appropriately be considered an accommodation that enables an employee to perform that job presents a troublesome problem, partly because of the oxymoronic anomaly it harbors…,” observed one judge. “Not working is not a means to perform the job’s essential functions,” observed another. The Tenth Circuit three years ago said that reasonable accommodations “are all about enabling employees to work, not to not work.”

The Seventh Circuit in Severson minced no words in rejecting the inflexible leave theory and abolishing that oxymoronic anomaly. “Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working,” the court said. In other words, someone who “cannot” is not someone who “can,” at least not in the Seventh Circuit.

My post last week concerning the Severson decision is here.

 

 

 

Paid Sick Leave Quarterly: 3Q 2017

As we start the last quarter of 2017, the vast and complicated patchwork of PSL laws consists of more than 40 laws: 8 state laws, the District of Columbia, 2 county laws and about 30 municipal or other political subdivision laws. As I said earlier this year, Rube Goldberg could not have devised such a  scheme.

Here is my 2017 third quarter PSL report, updated to note Albuquerque voters’ rejection yesterday of the Healthy Workforce Ordinance.

Paid Sick Leave Quarterly: 3Q 2017

Updated October 4 to note rejection of Albuquerque Healthy Workforce Ordinance. 

As we start the last quarter of 2017, the vast and complicated patchwork of PSL laws consists of more than 40 laws: 8 state laws, the District of Columbia, 2 county laws and about 30 municipal or other political subdivision laws. As I said earlier this year, Rube Goldberg could not have devised such a  scheme.

Here is my 2017 third quarter PSL report. My reports for prior quarters this year are here and here.

Paid Sick Leave Laws Effective This Quarter

Paid Sick Leave Laws Effective After This Quarter

Louvre Sculpture

Paid Sick Leave Bills Introduced This Quarter

Portland, ME. The Earned Paid Sick Time for Workers Ordinance has been introduced in the City Council and has been referred to the to the Health and Human Services Committee “for further research and deliberation.” The ordinance has the typical structure: employees working in Portland would accrue one hour of sick time for every 30 hours worked, to a maximum of 6 days annually. If enacted, the Ordinance would be effective July 1, 2018.

Paid Sick Leave Preemption Developments

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.

Paid Sick Leave Litigation

 Challenges to state PSL laws

Arizona: The Arizona Supreme Court issued an opinion in August explaining its March 2017 one-paragraph ruling rejecting a constitutional challenge to Proposition 206, a ballot initiative approved last November which requires most Arizona employers to provide paid sick days. Arizona Chamber of Commerce & Industry et al v. State of Arizona et al (No. CV–16–0314–SA, August 2, 2017).

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 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. June 23, 2017).

Oregon: The lawsuit brought by nine counties challenging the Oregon Paid Sick Leave Law as applied to them as employers was settled in July 2017, though one issue was reserved for appeal. Under the settlement, three counties–Linn, Douglas and Yamhill–need not comply with the Oregon Paid Sick Leave law, subject to a change in the law’s funding or the counties’ cost of compliance with the PSL law. The other six plaintiff-counties must comply with the Oregon PSL law. The State has reserved the right to appeal the judge’s decision that the Sick Leave Law is a “program,” as that term is used in the state constitution. Linn County et al v. Katie Brown as Governor, et al (Or. Cir. Ct. 23rd Dist.).

Challenges to local PSL laws 

Minneapolis, MN:  The Minnesota Court of Appeals affirmed a January 2017 lower court decision that the Minneapolis Sick and Safe Time Ordinance applies to businesses within the City’s geographic boundaries but not to businesses outside the City limits.  The cadre of business interests that brought the lawsuit has said it will ask the Minnesota Supreme Court to hear the case, according to a newspaper report.  Minnesota Chamber of Commerce et al vs City of Minneapolis et al (Case No. A17-0131, September 18, 2017)

Pittsburgh, PA: An appellate court last May affirmed a lower court’s decision that Pittsburgh did not have the authority to enact its Paid Sick Days Act and invalidating that law. In June, the union filed an appeal with the Supreme Court of Pennsylvania. Pennsylvania Restaurant and Lodging Ass’n v. City of Pittsburgh and Service Employees Int’l Union, Local 32 BJ.  (Pa. Comm. Ct., 79-CD-2016, May 17, 2017).

Other Paid Sick Leave Developments To Watch

Albuquerque, NM: Voters yesterday narrowly rejected the Healthy Workforce Ordinance, which would have allowed employees to accrue paid sick time. 50.39% voted against the Ordinance.

Austin, TX: The Austin City Council voted in September to consider requiring private employers to offer paid sick leave to their workers.  Proponents hope to draft an ordinance by early 2018.

Duluth, MN: Last year, the Duluth, MN City Council created a task force to collect information, hold public hearings, and make recommendations to the City Council concerning a sick and safe time ordinance.  The task force posted online PSL surveys for employers and employees and recently posted its survey summary. The Task Force must make its recommendations no later than November.

Michigan: The state Board of State Canvassers has approved a petition to allow proponents of the Earned Sick Time Act to collect signatures to try to have the Act on the ballot in 2018.

 

The ADA is Not a Medical Leave Entitlement, Court Says

Two weeks ago, I posted that the EEOC had sued a blood bank for giving employees only the leave they were entitled to under the FMLA, and not considering additional leave as  an accommodation under the ADA.  I noted that “the EEOC’s view is that the maximum leave required by the FMLA is merely the starting point for determining whether an employer has fulfilled its obligation to provide leave under the ADA.”

Last week, in words that seem to leave no room for interpretation, the Seventh Circuit rejected the EEOC’s view.  The employer had provided the plaintiff with all of the leave he was entitled to under the FMLA and denied his request for an additional two to three months to recover from back surgery. The plaintiff claimed he was entitled to more leave as a reasonable accommodation under the ADA. The EEOC filed an amicus brief in support of the plaintiff.

courthouse-1223280_640

The Court rejected the plaintiff’s and EEOC’s arguments and granted summary judgment to the employer. According to the Court:

“The ADA is an antidiscrimination statute, not a medical-leave entitlement….. Long-term medical leave is the domain of the FMLA.”

“An employees who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” (italics in original)

“[A] long-term leave of absence cannot be a reasonable accommodation…..'[N}ot working is not a means to perform the job’s essential functions’”

While the FMLA provides leave to employees unable to perform their job, “the ADA applies only to those who can do the job.”

The EEOC had also argued that it would not be an undue hardship for the employer to grant additional leave. The Court rejected that argument as well, noting that “undue hardship” is a “second tier inquiry” which is only reached after a reasonable accommodation has been identified. Continue reading

Teacher Absence Study Finds Significant Disparities Based on Type of School

A recent study comparing teacher absence nationally should generate discussion in statehouses, school districts and bargaining tables across the country. It is a worthwhile read for any employer in any industry interested in factors that may affect employee absenteeism.

The study compared teacher absence rates between traditional district-run schools and charter schools and between non-union and unionized charter schools.   The study uses the term “chronically absent,” which it defines as a teacher who misses more than ten days a year for sick or personal leave. Absences for school holidays, summer vacation and professional development are not counted.teacher-23304_1280

Some of the studies’ conclusions are:

  • More than one-quarter of public school teachers in the United States (28.3%) are chronically absent.
  • Traditional public school teachers are almost three times as likely to be chronically absent as teachers in charter schools (28.3% vs. 10.3%).
  • The difference in “chronically absent” rates is largest where school districts must bargain collectively but charter schools are not required to.
  • Teachers in unionized charter schools are twice as likely to be chronically absent as teachers in non-unionized charter schools (17.9% v. 9.1%).

The study notes that it is “descriptive,” that it “can highlight revealing patterns in rates of teacher chronic absenteeism, but it cannot establish a causal relationship between any specific policy or factor and absenteeism.”

Yet, the study’s content leads the reader to cry out: help me understand the reasons for these disparities so our political leaders could address them.  I suspect there are many diverse views about the reasons for the disparities. Creating a consensus about the need for change or the nature of the change needed would be a significant challenge.

The study was done by the Thomas B. Fordham Institute, which is not connected with Fordham University.

 

 

Rhode Island is “State Number Eight” to Pass Paid Sick Leave Law

The wait for “State Number Eight” to pass a paid sick leave law is over. Rhode Island has claimed that title.

The Rhode Island General Assembly convened yesterday for a “cleanup session” to deal with some bills that were pending when the regular session ended. During the regular session, both the Senate and the House had passed paid sick leave bills, but the session ended before they were reconciled. Yesterday, both the House and the Senate passed a compromise bill. Governor Gina Raimondo has said previously that she supports paid sick leave and is expected to sign the bill, which would be effective July 1, 2018.eight-33992_1280

A few observations about the bill:

  • Employees accrue one hour of leave for every 35 hours worked. In the other states, the accrual rate is one hour for every 30 or 40 hours worked.
  • The maximum annual accrual ramps up from 24 hours in 2018, to 32 in 2019, and to 40 for later calendar years.
  • For a foreseeable need to use leave, the bill requires employees “to schedule the use of sick and safe leave time in a manner that does not unduly disrupt the operations of the employer,” a concept in the Americans with Disabilities Act.
  • Meeting the “safe harbor” requirements will likely be easier compared to other states because employers who offer the required amount of annual time off are excused from complying with some of the bill’s procedural requirements.
  • The bill has the most comprehensive provisions concerning fraudulent use of PSL of any PSL law in the country.
  • The bill makes Rhode Island a preemption state. A “uniformity” clause prohibits municipalities from requiring employers to provide more paid sick and safe time than is required by the bill.

The Rhode Island bill is the first PSL bill of 2017. Albuquerque voters will be voting on a PSL initiative in two weeks, on October 3.