Paid Sick Leave Quarterly: 2Q 2019

The vast and complex patchwork of PSL laws expanded in the second quarter of 2019. The most notable development was the addition of two laws with PSL architecture but allowing paid leave to be used for any reason, not merely for sick leave.

This summary includes:

Paid Sick Leave Laws Effective in Q2

Paid Sick Leave Laws Effective After Q2

Louvre Sculpture

Paid Sick Leave Bills Introduced During Q2

  • None, though some introduced previously remain pending.

Paid Sick Leave Preemption Developments

Alabama:  The Eleventh Circuit Court of Appeals has decided to hear the challenge to Alabama’s minimum wage and employment benefits preemption law en banc, meaning that all of the Court’s judges will hear the case. The Court held oral argument on June 25, 2019. The Alabama Uniform Minimum Wage and Right-to-Work Act bars municipalities from requiring employers to provide employees wages or “employment benefits,” including leave, unless required by federal or state law. The plaintiffs brought various race-based challenges to the Act, all of which were rejected by a federal district court last year. Last July, a three-judge panel of the Eleventh Circuit affirmed the dismissal of all claims except the “equal protection” constitutional claim. Marnika Lewis v.  State of Alabama et al. (11th Cir) (Case No.17-11009)(11th Cir. July 25, 2018).

Paid Sick Leave Litigation

 Challenges to state PSL laws

Massachusetts and Washington: The Massachusetts Earned Sick Time Law (MESTL) and Washington State Paid Sick Leave Act (WPSL) as applied to flight crew are unconstitutional and preempted by the federal Airline Deregulation Act (ADA), according to complaints filed by the Air Transport Association of America, an association of airline carriers.  The plaintiff claims these state laws violate the dormant Commerce Clause–the implicit restriction on a state or local government’s ability to unreasonably burden interstate commerce–and the Fourteenth Amendment of the Constitution.  The plaintiff also alleges that the ADA preempts the state PSL laws with regard to both flight crew and ground crew because they relate to a “price, route or service of an air carrier.”  In the Massachusetts case, the plaintiff filed a motion for summary judgment on November 30, 2018, which remains pending. Air Transport Association of America, d/b/a Airlines For America v. Maura Healey in her capacity as Attorney General of the Commonwealth of Massachusetts (D.MA)(complaint filed 04/04/18)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)(complaint filed 02/06/18). A handful of airlines have raised similar challenges to the NYC PSL law as well.

Michigan: The Michigan Supreme Court will wade into the clash involving the constitutionality of the state’s Paid Medical Leave Act, at least to decide whether to consider the substance of that clash. In response to requests by both legislative chambers for an advisory opinion on the legality of the recently enacted state PSL law, the court scheduled a hearing on July 17, 2019. The first of three questions listed in the Court’s Order is whether it should exercise its discretion and issue the requested advisory opinion.

Challenges to local PSL laws

Pittsburgh, PA: The Supreme Court of Pennsylvania will decide whether Pittsburgh had authority to enact the Sick Days Act which it adopted three years ago. Last year, an appellate court affirmed a lower court decision that the City did not have the authority to enact it and invalidated the law. Oral argument in the Supreme Court occurred on October 23, 2018.  Pennsylvania Restaurant and Lodging Ass’n v. City of Pittsburgh and Service Employees Int’l Union, Local 32 BJ. (Pa. Supreme Court, 57 WAP 2017).

Austin, TX: The Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA), the Texas Court of Appeals, Third District, ruled in November.  The City of Austin has asked the Texas Supreme Court to hear an appeal of that decision. The Austin PSL ordinance was to be effective on October 1, 2018 but its implementation has been enjoined pending the outcome of the litigation. Texas Ass’n of Business et al v City of Austin, Texas et al (TX Ct of Appeals, Third District, Case. No. 03-18-00445-CV, November  16, 2018).

Other Paid Sick Leave Developments To Watch

Bernalillo County, NM:  The Board  of Commissioners tabled a proposed PSL ordinance to consider transforming it to an “any reason” ordinance by deleting the limits on the use of accrued time.

Minneapolis:  As a result of a recent court of appeals decision, beginning July 3, 2019, Minneapolis began enforcing its Sick and Safe Time Ordinance against businesses not physically located in the city but who have employees who work at least eight (80) hours in a year within the geographic boundaries of the city.

Albany County, NY and Portland, ME legislatures defeated PSL bills  this past quarter.

All part of life’s rich paid sick leave pageant!

Bernalillo County to Consider “Any Reason” Leave Bill

One month ago, writing about the recently-enacted Maine leave law, I urged readers to 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.” The Bernalillo County (NM) Board of Commissioners last night took the first step down that road. The Board voted to table the proposed sick leave ordinance to consider an amendment that would delete the limits on the use of accrued time, transforming the PSL law to an “any reason” ordinance.

mar-90737_1280

With Maine and Nevada recently having passed  “leave for any reason” laws and the Bernalillo County Commissioners action last night, we may be seeing the end of PSL laws as we have known them and are evolving to what I will call PSL 2.0 laws, which are structurally similar to a PSL law less the limitations on the use of accrued time.

 

Bernalillo County (NM) to Vote on Sick Leave Ordinance Today

A vote on the Bernalillo County (NM) Sick Leave Ordinance is on the agenda for today’s Board of County Commissioners meeting. The proposed ordinance applies to employers in the unincorporated limits of the County, which excludes the  City of Albuquerque.

The County ordinance has the typical PSL architecture: employees accrue PSL at the rate of one hour for every 30 hours worked to a maximum of 56 hours annually. An employee can carryover up to 56 unused hours.  It has some nuances, as most PSL laws do. In addition to including a broad definition of “family member,” this ordinance allows an employee to designate an addition individual to care for.  It also allows a successful plaintiff to recover liquidated damages equal to “three times the value of the earned sick time accrued.”

While it is always a challenge to handicap the likelihood of a PSL ordinance passing,  the stars seem aligned for this ordinance to pass. The five member Board of County Commissioners has four Democratic members., two of whom–the Chair and Vice-Chair–have sponsored this ordinance.  I’ll blog tomorrow about the outcome in Bernalillo County today.

Excessive Absence Day Today; Some Likely Fraudulent

It’s likely that some employees in your workforce called out sick today because they were watching the Game of Thrones finale last night. A recent study found that more than 10 million employees.will not report to the office today due to activities related to the Game of Thrones finale. If that occurs, the finale will join the Super Bowl and Oscars as entertainment events that instigate widespread absenteeism the day after.screen-310714_1280

Some percent of this group will likely report that they cannot come to work because they are sick when, in fact, they are not. No law protects an employee who reports fraudulently that he or she cannot come to work due to illness. The challenge, of course, is proving fraud.

Logic suggests an employer might ask the employee for a more detailed explanation of the reason for the employee’s illness to flesh out the employee’s explanation. Doing so would be unlawful in jurisdictions with a PSL law. The EEOC may view such inquiries as violating the ADA as well.

Logic also suggests an employer would require the employee to produce a doctor’s note substantiating the reason for the absence. Alas, that’s not allowed either. The various PSL laws prohibit an employer from requiring an employee to produce a doctor’s note unless the employee has been out three (or, under some laws, more than three) consecutive workdays. Even when a doctor’s note is allowed for a day here/day there absence, a note stating that the employee was absent for medical reasons, which is woefully unsatisfying when dealing with suspected fraud, is sufficient.

I have argued for some time that insufficient ink  is devoted in PSL laws to the fraudulent use of sick days. Few statutes acknowledge the issue; none give employers effective tools to deal with it. Which leads me to question whether PSL proponents believe, to paraphrase their mantra, that no one should have to choose between missing a paycheck and watching the Game of Thrones finale!

 

Amended Minneapolis Sick and Safe Leave Law Upheld on Appeal

The Minneapolis Sick and Safe Time Ordinance can be enforced against businesses not physically located in the city but who have employees who work at least eight (80) hours in a year within the geographic boundaries of the city, according to a state appellate court decision last week. The court also held that the Minneapolis ordinance was not preempted by a state law allowing employees to use their sick leave benefits to care for ill or injured family members and for safe time.

minneapolis-1632077_640

A cadre of business interests brought the legal challenge to the Minneapolis ordinance in January 2017, months before the ordinance went into effect on July 1, 2017. The initial court decisions enjoined the city from enforcing its PSL law against employers who did not have a physical presence in the city. To address this issue, in March 2018, Minneapolis amended its ordinance by narrowing its application to such “extraterritorial” employers. The amendments added that employees accrue PSL time for hours worked “within the geographic boundaries of the city” and could use that time only when scheduled to work “within the geographic boundaries of the city.” These amendments, the city argued, salvaged the Ordinance’s extraterritorial provisions.

Last week, the court of appeals agreed, reversing a state district court decision a year ago which had rejected the Ordinances’ application to businesses outside the city limits.