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?

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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.

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

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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.

 

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.

Split Decision Again in Effort to Enjoin Minneapolis Paid Sick and Safe Time Law

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 Minnesota Court of Appeals ruled yesterday. The court’s decision affirms a January 2017 decision by a Hennepin County District Court judge. My post about the lower court’s decision is here.

The appellate court rejected both the appellants’ argument that the Ordinance should be enjoined and invalidated completely, and the City’s argument that it should not be enjoined at all, and should be applied to employers both within and outside of the City’s geographic boundaries.

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The Ordinance seeks to reach employers without a physical presence in Minneapolis by defining “employees” as those “who perform work within the geographic boundaries of the city for at least eighty (80) hours in a year.” A practical challenge is that employers do not track the time an employee crosses the border into or leaving a municipality. The appellants made this point, ,according to the court, with affidavits stating that “recording the whereabouts of employees relative to municipal boundaries is not a standard part of existing time-tracking systems.” PSL kudos for that creative approach to make that point.

I suspect this decision is also of keen interest to the cities of St. Paul and Duluth.  St. Paul’s Sick and Safe Time Ordinance was effective July 1, 2017. The Duluth Safe and Sick Time Task Force continues apace on its mission to make a recommendation to the Duluth City Council later this year.

Portland, ME and Austin, TX to Consider Paid Sick Leave Bills

Just when I thought, and posted, that Rhode Island and Albuquerque were the only two jurisdictions that might enact a paid sick leave law in 2017, now come Portland, Maine and Austin, Texas to the table.

Labor Day was the kickoff for paid sick leave campaigns in both cities. In Portland, the mayor will present his proposal to the City Council on September 18, according to a news report. The draft ordinance follows the classic structure—an hour accrued for every 30 hours worked, up to six paid days per year.  The packet of information about the bill from the mayor’s office, which includes the proposed ordinance, is here. Earlier this year, the Maine legislature considered and rejected a bill that would have required employers statewide to allow employees to accrue paid sick leave.

In Austin, a City Council member announced that he intends to introduce a paid sick leave bill by the end of the month, according to a news report. The Council member is working on a draft of the ordinance, according to that report.

As I had posted recently, no paid sick leave law have been enacted in 2017. With less than four months left in the year, and four jurisdictions considering PSL bills within those four months, we may yet see at least one 2017 contribution to the PSL patchwork.

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For those who have noticed the relationship between a jurisdiction’s “blue” political leanings and its consideration of a paid sick leave bill, Portland and Austin support that connection. Both Maine and Texas voted for President Trump in the November 2016 election. However, Portland was deep, deep blue, with 76% of its voters voting for Secretary Hillary Clinton.  Austin is the county seat of Travis County. That county was deep blue, with Secretary Clinton receiving more than 66% of the vote.

New Mexico Supreme Court to Hear Healthy Workforce Ordinance Dispute 

The New Mexico Supreme Court will decide the constitutionality of the Albuquerque Healthy Workforce Ordinance. The Court will hear an appeal from District Court Judge C. Shannon Bacon’s August 11 decision dismissing all of the constitutional challenges to the HWO brought by a cadre of business interests.   My post about that decision is here.

 The plaintiff-business interests had claimed that the HWO violated the state constitution because it violated the “single subject” rule, i.e., was impermissible logrolling; exceeded a home rule municipality’s authority and the territorial reach of the City; and because ordinances may not be enacted by voter initiative.

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On August 14, the business interests filed with the New Mexico Supreme Court an “Emergency Verified Petition” seeking a review of Judge Bacon’s decision.  (Case No S-1-SC-36609).

On August 24, the Intervenors, representing employees without earned sick leave and HWO proponents, filed an opposition to the Petition, arguing that Judge Bacon’s ruling was correct.  In its opposition, Intervenors note that while the HWO is currently scheduled to be on the ballot at the next regular municipal election, which is on October 3, 2017, absentee voting in that election, and on the HWO, has already begun because, on August 19, the City “emailed the ballot to overseas voters pursuant to the Uniformed and Overseas Citizens Absentee Voting Act.”

While there is no timetable within which the New Mexico Supreme Court must issue a decision in the case, given the impending vote, I suspect the case will move swiftly at the Court.