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.
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!
The Portland (ME) City Council tonight rejected a PSL bill by a 5-4 margin. The issue has been pending in the legislature since the Mayor of Portland introduced the initial bill in 2017. A statewide PSL bill is pending in the Maine legislature.
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.
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.
Undeterred by an appellate court’s decision that the Austin Earned Sick Time Ordinance is unconstitutional. Undeterred by the passage in the state Senate of two bills to bar political subdivisions from enacting a PSL ordinance. Undeterred by the failure of PSL supporters to collect sufficient valid signatures to allow Dallas voters to consider a PSL ballot initiative last November. Undeterred, the Dallas City Council yesterday passed an Earned Paid Sick Time Ordinance, adding to the PSL turbulence in Texas.
While there are serious doubts about whether the ordinance will ever become effective, by its terms it is effective August 1, 2019 for employers with at least five employees (the same effective date as the San Antonio PSL ordinance) and two years later for employers with less than that.
The ordinance has the typical PSL architecture. Employees accrue an hour of PSL for every 30 hours worked to a maximum of 64 hours annually for employers with more than 15 employees and a maximum of 48 hours annually for smaller employees. The ordinance has the provision unique to the Austin and San Antonio ordinances that an employer need not allow an employee to use PSL on more than eight days a year.
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.In Michigan, a legislative chamber or the governor may ask the Supreme Court to issue an advisory opinion on “important questions of law upon solemn occasions as to the constitutionality of legislation….”
The other two questions for which the Court solicited briefs concern the process-used to enact the PSL. PSL proponents had collected enough signatures to have voters decide in November 2018 whether to enact a PSL initiative. The Michigan Constitution gives the legislature the option to enact such an initiative, negating the need for a vote on it. Both legislative chambers, both with GOP majorities, had concerns about the substance of the PSL bill. They decided to enact the voter initiative and then amend it. This strategy was adopted because amending a statute enacted by the legislature requires a majority vote in each legislative chamber while amending a statute enacted by a voter initiative requires a three-fourths vote of each chamber. The urgency to implement this strategy increased in November when voters elected a Democratic governor who would take office in January and would likely veto the effort to amend the PSL law.
Last Fall, the legislature enacted the initiative and a few months later amended it. In December, lame duck GOP Governor Rick Snyder signed the amended bill.
The Supreme Court has asked the parties to brief whether the legislature may “enact an initiative petition into law and then amend that law during the same legislative session” and whether the PSL and minimum wage laws were enacted in accordance with the constitutional provision concerning voter initiatives.
The Board of Trustees of the Village of Glenview last week opted in to the Cook County Earned Sick Leave Ordinance, effective July 1, 2019. The Glenview Board had opted out of the County PSL ordinance in June 2017, just weeks before its effective date. Glenview joins the villages of Northbrook, Wilmette and Western Springs as municipalities that had initially opted out before opting in.
The political change of heart in Glenview comes three months after the November 6 advisory ballot initiative in which nearly 90% of voters in municipalities that had opted out of the County law urged their municipality to enact a paid sick leave ordinance. Approximately 80% of the County’s municipalities have opted out of its Earned Sick Leave Ordinance. My “nix list” is here.
The agenda packet relating to last week’s meeting of Glenview’s Board of Trustees included an interesting bit of information about the enforcement of the County PSL ordinance. A comment in that packet notes that the County Human Rights Commission, which enforces the County’s PSL law, has stated that “to date there have been no claims filed by employees against Cook County employers regarding violations” of the Earned Sick Leave Ordinance.”
None, though some introduced previously are still pending.
Paid Sick Leave Preemption Developments
Alabama: Marnika Lewis v. State of Alabama et al. (11th Cir) (Case No.17-11009)(11th Cir. July 25, 2018). 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. It was passed the day after Birmingham increased the minimum wage within the city. The plaintiffs brought various race-based challenges to the Act, all of which were rejected by a federal district court last year. In July, the Eleventh Circuit affirmed the dismissal of all claims except the “equal protection” constitutional claim, holding that the plaintiffs have plausibly alleged both that the Act “burdens black citizens more than white ones” and that it was enacted with a discriminatory purpose. The court remanded that claim to the district court.
Texas: On opening day of the pre-filing season in the Texas Legislature, one of the pre-filed bills would preempt municipalities from adopting or enforcing any ordinance requiring an employer to provide paid sick leave to an employee. House Bill 222 also voids any ordinance that requires an employer to provide paid sick leave, such as the Austin and San Antonio PSL ordinances. The legislative session opened on January 8, 2019. If enacted, the bill would be effective September 1, 2019.:
Proposed federal bill: The Workflex in the 21st Century Act, introduced in the House of Representatives in November, 2017, 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 died with the end of the 115th Congress.
Paid Sick Leave Litigation
Challenges to state PSL laws
Massachusetts: The Railroad Unemployment Insurance Act (RUIA) preempts the Massachusetts Earned Sick Time Law (MESTL) in its entirety as it applies to interstate rail carriers, according to a decision in August by a Massachusetts federal district court on remand from the First Circuit. The First Circuit had held previously that the MESTL provision dealing with benefits for an employee’s own medical condition was preempted by the RUIA but remanded the case to have the district court decide whether any other sections of MESTL were preempted by the RUIA or the Railway Labor Act or ERISA and whether any sections of the MESTL can survive as applied to interstate rail carriers. CSX Transp. v. Healey, 861 F.3d 276 (1st Cir. 2017).
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 Airline Deregulation Act (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.” 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).
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. 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….” 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 court’s ruling focused largely on whether the sick days under ordinance were a “wage.” Relying on dictionary definitions, the court held that the Ordinance establishes a wage and is thus preempted by the TMWA. The Austin PSL ordinance had been scheduled to go into effect on October 1, 2018 but its implementation had been enjoined pending the outcome of the litigation. The City of Austin, reportedly, intends to appeal to the Texas Supreme Court. Texas Ass’n of Business et al v City of Austin, Texas et al (TX Ct of Appeals, Third District, November 16, 2018).
Other Paid Sick Leave Developments To Watch
Albany County, NY: The County’s Paid Sick Leave Act was introduced in March and referred to the Legislature’s Law Committee. There have been two public hearings. The Law Committee will revisit the proposal in 2019.
Cook County Earned Sick Leave Ordinance: More than 80% of the municipalities within Cook County had opted out of the County PSL ordinance. The Village of Wilmette, after opting out of the County PSL ordinance twice, opted back into it. The villages of Northbrook and Western Springs revoked their “opt out” of the County PSL ordinance earlier this year. More municipalities within Cook County are expected to reconsider their opt out decisions this year.
Albuquerque and Portland, ME. Either city could be the next to enact a PSL ordinance. After a multi-front, prolonged legal battle, Albuquerque voters in 2017 narrowly rejected a PSL bill. A more narrow bill is being debated in the legislature. In Portland, a PSL bill was introduced in 2017 and is wending its way through the legislative process.