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..
Waiting for New Jersey Governor Phil Murphy to sign the PSL bill passed by both legislative chambers reminds me of waiting for Beckett’s Godot, where Estragon and Vladimir lament daily that Godot did not come today, he might come tomorrow.
The New Jersey legislature sent the governor the PSL bill last week. When that signing occurs, with the stroke of a PSL pen, Governor Murphy will lop off almost a third of the paid sick leave patchwork because the bill will preempt the 13 municipal PSL bills within the state when it goes into effect 180 days after the governor signs it. (See my post about that provision here.)
Despite the lopping, PSL proponents should be pleased because the scope of PSL coverage will expand to the entire state. Because of the lopping, PSL patchwork opponents should be pleased because there will be a dozen fewer PSL laws.
Post-lop, about 30 jurisdictions will have PSL laws; 10 states, the District of Columbia, 2 counties and about 17 municipalities.
If the wait for the New Jersey governor’s signature is too long, Hawaii might sneak in as PSL state number ten. A conference committee there will be hammering out the differences between the House and Senate passed PSL bills.
Elementary school teachers in Glendale, Arizona have planned a sick out today to protest their low pay, according to news reports. Calling out sick will be easy enough for the teachers. Arizona’s recently enacted PSL law, like all others, adopts a “don’t ask, don’t tell” approach to call-outs. The employee need not tell the employer anything beyond “I am sick and cannot come to work” and the employer may not ask for any information beyond that. According to one report, however, some teachers may spend their sick day protesting at the Capital, which may cause some to question whether they are using that sick day for an authorized purpose.
The Glendale teachers are not alone in calling out sick as a means of protest. Teachers in Prince George’s County, Maryland had planned a system-wide sick out for this past Monday to protest some central office employees receiving “secret” wage increases, according to reports. Ultimately, the teachers decided not to have their system-wide sick out though some classes in some schools were cancelled due to teacher absences. Instead of the general sick-out, teachers favored a “work to rule”protest.
Both of these situations illustrate how far we have come from the justification for sick days—that an employee should not have to choose between his/her or a family member’s health and a paycheck. Apparently, an employee should not have to choose between a protest and a paycheck either!
How many employees at your company called out sick today? I suspect it’s many more than on a typical Monday. An estimated 13.9 million Americans will call out sick today, the day after the Super Bowl, according to a recent survey by the Workforce Institute at Kronos and Mucinex. About one in five employees have reported that they have called out sick the day after the Super Bowl, according to the survey.
It seems that many have declared Super Bowl Monday their own personal holiday. Paid sick leave laws enable these absences by making calling out a low to no-risk undertaking. “I am sick today. I cannot come to work” is all PSL laws require for an employee to get a Super Bowl pass from attendance policies.
An employee who uses PSL time has no need to worry about cross-examination by the boss concerning the reason for the absence. PSL laws prohibit employers from asking or requiring any information about the condition for which PSL time is used.
No need for an employee who calls out to be concerned about a request for medical documentation either. PSL laws, generally, prohibit employers from requiring employees to produce medical documentation to substantiate the absence unless the employee has been out at least three days.
While every jurisdiction, I suspect, would proclaim that its PSL law does not sanction fraud and that an employer need not tolerate fraud ever, even on Super Bowl Monday, by requiring employers to take an employee’s word about the need for leave, and prohibiting further inquiry or substantiation of the need for leave, PSL laws are huge, perhaps insurmountable, obstacles for an employer wanting to investigate PSL fraud.
With so much absence on Super Bowl Monday, and lost productivity from those who manage to get to work, some have suggested making Super Bowl Monday a national holiday. That might make sense, After all, no employee should have to choose between recovering from Super Bowl festivities and a paycheck, should they?
The Supreme Court of Pennsylvania yesterday agreed to hear an appeal concerning the City of Pittsburgh’s authority to enact the Sick Days Act.
Pittsburgh enacted that Act 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 invalidating it The lone dissenting judge said that Pittsburgh had the right to protect the health and safety of its residents and that the Paid Sick Days Ordinance 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….”
In agreeing to hear the appeal, the Supreme Court framed the issue as follows:
“Did the Commonwealth Court err in holding that the State Emergency Management Services Code, the State Disease Prevention and Control Act Law, the Second Class City Code, and the Home Rule Charter and Options Law failed to satisfy the “expressly provided by statute” exception, and that the City of Pittsburgh therefore lacked the authority to pass the Paid Sick Days Act and the Safe and Secure Buildings Act?”
The Pittsburgh Sick Time Act hews to the typical architecture of a paid sick time law. Employees would accrue one hour of paid time for every 35 hours worked, to a maximum of 40 hours annually.
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.
- Paid Sick Leave Laws Effective This Quarter
- Paid Sick Leave Laws Effective After This Quarter
- Paid Sick Leave Bills Introduced This Quarter
- Paid Sick Leave Preemption Developments
- Paid Sick Leave Litigation
- Other Paid Sick Leave Developments To Watch
- Arizona Fair Wages and Healthy Families Act (July 1, 2017)
- Chicago Minimum Wage and Page Sick Leave Ordinance (July 1, 2017)
- Cook County (IL) Earned Sick Leave Ordinance (July 1, 2017)
- Minneapolis (MN) Sick and Safe Time Ordinance (July 1, 2017)
- St. Paul (MN) Sick and Safe Time Ordinance (July 1, 2017)
- Berkeley (CA) Paid Sick Leave Ordinance (October 1, 2017)
- Washington Law Establishing Fair Labor Standards by Requiring Employers to Provide Paid Sick Leave to Employees (January 1, 2018)
- Rhode Island Healthy and Safe Families and Workplace Act (July 1, 2018)
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.
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.
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).
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.
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.
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.
The New Mexico Supreme Court has removed the remaining potential obstacle to an October 3 vote in Albuquerque on the Healthy Workforce Ordinance (HWO). The Supreme Court last Friday denied the “emergency” petition filed by a cadre of business interests, asking the Court to review a decision rejecting their arguments that the HWO was unconstitutional. The Court rejected the petition “without prejudice,” suggesting that while the emergency aspect of the appeal was denied, the business interests may pursue their appeal on a non-emergency basis.
With the ballot form approved by another court (see here), and the constitutional cloud cleared by the state Supreme Court, Albuquerque voters will go to the polls on October 3 to vote on whether they would like to accrue paid sick time at work.
While speculating is always fraught with peril, the odds suggest that Duke City residents will approve the HWO. Given the opportunity, voters have approved a ballot initiative giving them paid time off in all but one situation. The lone exception was in Denver in 2011.
No PSL laws have been enacted thus far in 2017. That could change within the next few weeks. In addition to the October 3 Albuquerque referendum, the Rhode Island legislature is convening on September 19 to consider numerous bills, including a PSL bill.
Posters hung in public places by fast food employees protesting their lack of sick days demonstrated “such detrimental disloyalty as to provide ‘cause’” for their discharge, a federal appeals court sitting en banc held recently. MikLin Enterprises, Inc. v. NLRB (8th Cir. July 3, 2017).
A union had been trying to organize employees of MikLin Enterprises, Inc., a Jimmy John’s Minnesota franchisee. During flu season, a group of employee/union supporters hung posters encouraging readers to support their effort to “win sick days.”
The poster featured photos of two identical sandwiches, noting that the sandwich on the left had been made by a “healthy Jimmy John’s employee” while the other had been made by a “sick Jimmy John’s employee.” The poster stated that it was “too bad” if a reader could not tell the difference between the two sandwiches “Because Jimmy John’s Workers Don’t Get Paid Sick Days. Shoot. We Can’t Even Call in Sick.” The poster added: “We Hope Your Immune System is Ready Because You’re About to Take the Sandwich Test.”
The poster’s “enduring image was a MikLin-made Jimmy John’s sandwich that, although appearing like any other, was filled with cold and flu germs,” the court said. “Allegations that a food industry employer is selling unhealthy food are likely to have a devastating impact on its business,” the court said, citing another court’s observation that such allegations are “the equivalent of a nuclear bomb in a labor-relations dispute.”
The National Labor Relations Board had held that the discharges were unlawful because the employees were engaged in protected concerted activity for their own mutual aid and protection. A three judge panel of the Eighth Circuit had upheld that decision. See my post here.
But the Eighth Circuit en banc court disagreed. The NLRA ”does not protect such calculated, devastating attacks upon an employer’s reputation and products,” the court said.