Why Do Paid Sick Leave Laws Shortchange Union Employees?

Help me understand why some paid sick leave laws do not guarantee union-represented employees the same paid sick leave benefit guaranteed non-union employees. PSL proponents recite the mantra that an employee should not have to choose between his or her health, or a family member’s health, and a paycheck. Yet, many PSL laws guarantee that non-union employees will not need to make that choice, but do not make that same guarantee to union members. This is especially vexing given that labor leaders advocate strongly for PSL laws.

Take Philadelphia. Its PSL law does not even apply to employees covered by a collective bargaining agreement. PSL laws in Arizona, Maryland, Cook County, Chicago and Seattle allow unions and employers to waive employees’ PSL rights in their labor agreement.

Other jurisdictions allow PSL waivers as well:

  • In the District of Columbia, the labor contract can reduce the number of sick days bargaining unit employees receive to no less the three. The law allows employees of employers with at least 100 employees to accrue up to seven days, and employees of employers with 25 to 99 employees up to five.
  • In New York City, the labor contract can eliminate the PSL benefits for bargaining unit employees if it requires premium rates for Sunday work or has some other benefit “comparable” to paid leave. There is no requirement that an employee ever have the opportunity to work on Sunday.
  • The California law allows a labor contract to waive employees’ PSL rights if it has a provision for paid sick days, final and binding arbitration of disputes relating to those sick pay provisions, has premium wage rates for all overtime hours worked, and has regular hourly rates of pay at least 30% higher than the state minimum rate.
  • In Austin, the most recent PSL law, unions and employers can agree to a reduced cap of earned sick time. The law allows employers to have an annual cap of 48 or 64 hours, depending on the employer’s size.


Some may surmise that a union would not agree to a PSL benefit less than that in the law. If that were so, the waiver language would be superfluous and there would be no need for labor to advocate for it. Also, anyone who has even negotiated a labor contract—and I have negotiated many—knows that collective bargaining is sausage-making at its finest. It makes legislative sausage-making look like the minor leagues.

Help me understand. I have posted that entreaty about PSL waivers before (see here, here and here).




Maryland Healthy Working Families Act: A PSL-4Step Analysis

The Maryland General Assembly last month overrode Governor Larry Hogan’s veto of the Healthy Working Families Act. Since the HWFA is effective in a few days, on February 11, it seems fitting and proper, as lawyers are wont to say, to post my 4Step analysis of that law.

The law requires the Commissioner of Labor and Industry to develop and post on its website (https://www.dllr.state.md.us/paidleave/) a model poster, notice, and sick and safe leave policy and to provide technical assistance to employers. As of this writing, the model documents have not yet been posted. The Commissioner also “may” adopt regulations necessary to carry out the HWFA.


Here, I use the PSL-4Step framework to analyze the HWFA.

Step 1: Does it apply?

“Employer” includes state and local government units and “a person that acts directly or indirectly in the interest of another employer with an employee.”

“Employee” does not include an individual who

  • performs work under a contract of hire that is determined not to be covered employment under Labor and Employment, Section 8-205;
  • is not a covered employee under Labor and Employment, Section 9-222 (deals with real estate brokers and salespeople);
  • is under the age of 18 years before the beginning of the year;
  • is employed in the agriculture sector on an agricultural operation;
  • is employed by a temporary staffing agency which does not have day to day control over the work assignments and supervision of the individual while providing the temporary staffing services; or
  • is directly employed by an employment agency to provide part-time or temporary services to another person.

Also, the HWFA does not apply to an employee:

  • who regularly works less than 12 hours a week for an employer;
  • is in the construction industry but is not a janitor, a building cleaner, a building security officer, a concierge, a doorperson, a handyperson or a building superintendent and who is covered by a collective bargaining agreement in which the requirements of the HWFA law are expressly waived in clear and unambiguous terms;
  • who is “called to work by the employer on an as-needed basis in a health or human services industry, [who] can reject or accept the shift offered by the employee, is not guaranteed to be called on to work by the employer and is not employed by a temporary staffing agency.”

Also, the law does not affect any bona fide collective bargaining agreement entered into before June 1, 2017 for the duration of the contract term, excluding any extensions, options to extend, or renewals of the term of the original agreement.

Finally, if a unit of state or local government’s sick leave accrual and use requirements meet or exceed leave under the HWFA, employees of that unit who are part of the unit’s personnel system are subject to the unit’s laws, regulations, policies, and procedures providing for accrual and use of leave, grievances and disciplinary actions. Any employees in such unit not covered by the unit’s sick leave and accrual and use requirements are subject to the HWFA.

Step 2: The Benefit Continue reading

Supreme Court Asked to Review Decision Rejecting EEOC’s Inflexible Leave Policy

The Supreme Court’s term just got much more interesting for leave management lawyers. A petition for certiorari was filed last week in Severson v. Heartland Woodcraft, Inc., the Seventh Circuit decision rejecting the EEOC’s position that an “inflexible” or “maximum” leave policy violates the ADA because it does not allow for additional leave as a reasonable accommodation.  I had posted that the Supreme Court would eventually need to resolve the “inflexible leave” issue. Perhaps that time will be soon.

Heartland Woodcraft had provided the plaintiff with all of the leave he was entitled to under the FMLA and denied his request for an additional two to three months to recover from back surgery. The plaintiff claimed he was entitled to more leave as a reasonable accommodation under the ADA. The EEOC filed an amicus brief in support of the plaintiff.


The Seventh Circuit held that the ADA does not govern medical leaves. “The ADA is an antidiscrimination statute, not a medical-leave entitlement….. Long-term medical leave is the domain of the FMLA,” the Court said.

Underlying the EEOC’s inflexible leave position is the oxymoronic anomaly that an individual who cannot come to work is nonetheless a qualified individual with a disability, defined as one who can perform the essential functions of the position either with or without an accommodation.

The Seventh Court rejected that argument.  “[A] n employees who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA,” the court said. (italics in original).  “[A] long-term leave of absence cannot be a reasonable accommodation…..'[N}ot working is not a means to perform the job’s essential functions,” the court added.

In a 2014 opinion authored by then-Tenth Circuit Judge, now Associate Justice of the Supreme Court Neil Gorsuch, the Tenth Circuit rejected the argument that the employer’s six-month maximum leave policy violated the ADA. Hwang v. Kansas State University, (10th Cir.  2014).


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.


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.