The Paid Sick Leave Patchwork Comes to Congress

A few months shy of five years ago, I predicted in a blog post the development of the paid sick leave patchwork . I wrote then:

If you look out toward the leave-and-attendance legislation horizon, and you might have to squint a bit but not much, you can see yet another patchwork beginning to take shape. This one is on paid sick days. Multi-state employers need to watch this carefully since it is certainly heading for full-fledged “patchwork” status which, when combined with the patchworks of family and medical laws, pregnancy leave laws and disability discrimination laws, makes one mega-leave-and-attendance-patchwork!

The now full-fledged PSL patchwork has arrived in the hallowed halls of Congress. Two days ago, a House Subcommittee on Health, Employment, Labor and Pensions held a hearing on workplace leave policies. In his opening statement, Subcommittee Chair Rep. Tim Walberg (R-MI) acknowledged the patchwork: Continue reading

Spokane’s Paid Sick Leave to Sunset January 1; Tacoma’s Merely Amended

Come January 1, 2018, delete Spokane, Washington from your list of paid sick leave jurisdictions.

The Washington State paid sick leave law that voters approved last year goes into effect on January 1, 2018.  After that vote,  Spokane amended its paid sick leave law, which has been in effect since January 1, 2017, to “sunset” upon the effective date of the state law, i.e., January 1, 2018.  My post about that Spokane amendment is here.

Tacoma, whose paid sick leave law has sunset in grand tetonsbeen in effect since February 1, 2016,  opted for a different approach. It amended its paid sick leave law to align it more closely with the state law but not completely. Tacoma finalized its rules and regulations for its amended law yesterday and published a side-by-side comparison of its original and amended paid sick leave ordinances with the state ordinance.

With Spokane deleted, Seattle, SeaTac and Tacoma are the three cities in Washington with paid sick leave laws.

 

Paid Sick Leave Consideration in Three Cities Likely Pushed to 2018

In September, I noted the possibility that Austin, TX or Portland, Maine might pass a paid sick leave law this year. It now appears that any action in either city will be a 2018 story. Both are collecting views from the citizenry on such an ordinance

Austin has held two “input sessions” this month and a third scheduled for November 30. The city staff will then submit a recommendation to the City Council for its consideration.

The Portland City Council referred the Earned Paid Sick Time for Workers bill to the Health and Human Services Committee. That Committee reviewed the bill initially at its November 14 meeting. The Committee’s agenda noted that it anticipates holding a public hearing on the bill early next year.

I also noted recently that the Duluth Sick and Safe Time Task Force submitted its recommendation to the Duluth City Council on November 20. The Council is scheduled to have an “open discussion” on that topic on November 30. To move from an “open discussion” to an enacted ordinance by the end of the year would be quite speedy and I anticipate Duluth will be a 2018 story as well.

With decisions on these local ordinances pushed to next year, it is likely Rhode Island will be the one and only PSL law enacted in 2017. This is the fewest number of PSL laws enacted nationwide in the past five calendar years.

 

Paid Leave for Massachusetts Veterans for Veterans’ Day Activities

Massachusetts had required employers to give time off to veterans to attend a Memorial Day or Veterans Day “exercise, parade or service” but left the issue of pay for that time off to the employer’s discretion, until last year.

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In 2016, Massachusetts amended that law to require employers with at least 50 employees to provide paid time off to veterans to participate in such activities on Veterans Day only. Veterans must provide reasonable notice of the need for such leave. This leave law does not apply to “employees whose services are essential and critical to the public health or safety and determined to be essential to the safety and security of each such employer or [its]property….” M.G.L. Chapter 149, Section 52A1/2.

 

ADA or FMLA: In Whose Domain is the Short Term Absence?

Of that small cadre in the leave management community that derive pleasure in following the development of Inflexible leave law, I suspect at least a few have lost sleep wondering about the recent Severson decision’s impact on the Verizon ADA issue. I know at least one that has. (See my earlier posts about the Severson decision here and here).

The Seventh Circuit said in Severson that “long-term medical leave is the domain of the FMLA,” not the ADA. But in which law’s domain is the occasional “day here, day there” absence?

Which brings the Verizon ADA issue front and center. In 2011, Verizon paid $20 million to settle an EEOC lawsuit claiming that “Verizon violated the ADA by refusing to make exceptions to its ‘no fault’ attendance plans to accommodate employees with disabilities,” according to the EEOC’s press release. Under its plan, Verizon imposed progressive discipline based on “chargeable” absences. The settlement required that the plan state that “excusal of an absence as “nonchargeable” may be considered a reasonable accommodation under the ADA.”

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Since FMLA may be taken intermittently or on a reduced schedule, the Severson court’s statement that the FMLA provides a medical leave entitlement while the ADA does not suggests that all absences–including those that were the subject of the EEOC’s Verizon lawsuit–are within the FMLA’s bailiwick.

However, in dicta, the Severson court said that “a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances.”  “Intermittent time off or a short leave of absence—say a couple of days or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule,” which are possible accommodations listed in the ADA, the court said. This language suggests that intermittent or reduced schedule absences could be within the ADA’s bailiwick as well.

The ADA went into effect six months before the FMLA was passed. Was it Congress’ intention to have the ADA protect employee absences for medical reasons while simultaneously debating and enacting the FMLA to protect employee absences for medical reasons?

I suspect the Supreme Court of the United States, eventually, will weigh in and tell us which law is the domain of employee absences, whether they be short term or long term absences.

 

Rhode Island Paid Leave Bill: See You in September!

The Rhode Island legislature last week passed a budget and a few other bills, and then left town, portending at least six more weeks of limbo for the proposed Healthy and Safe Families and Workplaces Act. The legislature will meet on September 19 to deal with various bills it left in limbo at the end of the regular session which, presumably, includes the paid leave bill.

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Before a bill can be sent to the governor for her signature, the House and Senate must reconcile the versions each has passed.  Among the differences are the minimum number of employees an employer must employ to be covered by the Act, and the maximum number of paid hours an employee can accrue annually.

The wait for State Number Eight continues. I suspect that the Rhode Island legislature is the only legislature with any meaningful chance of passing a PSL bill in 2017.

Lucky 7 Wins Font Fight in Albuquerque

The text of the Healthy Workforce Ordinance will be printed on the October referendum ballot in 7 point font, not in the 8.5 font requested, a state district court judge ruled last week, according to a local newspaper report. Proponents of the HWO had filed an emergency motion to stop the City from printing the 7-point font ballot.  They had claimed a 7-point ballot was “illegible and [an] illegally-small font size.”dice-1934002_1280

The judge also rejected the City’s effort to include an “advisory” question on the ballot, according to that report. That advisory question asked whether the City should “promptly enact a sick leave ordinance in a manner that promotes public participation, public hearings, transparency and fairness so that a wise and workable sick leave policy is adopted and effective no later than January 1, 2019[].”

The judge said that the advisory question “employs semantically ‘loaded’ terms and clearly implies that the proposed (Healthy Workforce Ordinance) is not transparent, fair, wise or workable,” according to the newspaper report.

A second lawsuit challenges the constitutionality of the HWO. That complaint alleges that combining the HWO’s 14 “non-interdependent” provisions into one voter initiative is “logrolling” in violation of the state constitution. Logrolling, also known as the “single subject” rule, is defined in the lawsuit as “the presentation of double or multiple propositions to the voters with no chance to vote on the separate questions so that unpopular, unworkable or extreme new laws will be voted on, with a potentially popular idea.”  The City and other defendants have asked the court to dismiss the lawsuit. A hearing is scheduled for this Thursday, August 10. Courts in Arizona and Washington have rejected “single subject” rule challenges to their state paid sick leave law. My posts on those decisions are here and here.