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.

Minnesota Paid Sick Leave Redux

It began with the Fracas in Minneapolis, here, and evolved to the Minnesota Melee, here.  Let’s revisit the state of PSL in the North Star State.

  • Minneapolis and St. Paul each passed a Sick and Safe Time Ordinance about a year ago, each to be effective on July 1, 2017.
  • A cadre of business interests sued to enjoin the Minneapolis law.
  • In January 2017, a Hennepin County District Court judge declined to enjoin the Ordinance with regard to businesses within the geographic boundaries of Minneapolis but enjoined its enforcement with regard to businesses outside of those boundaries.
  • Each side appealed, We are awaiting a decision from the Minnesota Court of Appeals, which heard oral arguments on the appeal on July 11.
  • Minneapolis and St. Paul have implemented their ordinances, effective July 1, with regard to employers within the city limits.
  • 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.
  •  Minnesota Governor Mark Dayton vetoed the bill passed by the Minnesota legislature which would have preempted municipalities from enacting a sick leave law, among other employment regulations.  It would also have negated the Minneapolis and St. Paul Sick and Safe Time ordinances.minnesota-31510_1280

In sum, the state of PSL in the North Star State is:

  • Minnesota is not a preemption state.
  • Minneapolis and St. Paul PSL ordinances are partially in effect, but a judicial cloud hangs over them.
  • The judicial outcome likely dictates Duluth’s PSL future.

 

Oregon Scheduling Law May Increase Cost of Providing Paid Sick Leave

Oregon will likely became the first state to pass a predictable scheduling law. The bill has been sent to Governor Kate Brown, who is expected to sign it. The law would be effective July 1, 2018.

Predictable leave laws add to an employer’s challenge to deal with leave under paid sick leave laws. Let’s assume an employee gives the employer three days’ notice of the need to use a PSL day. The employer could either have another employee work the hours of the employee using PSL or, if appropriate, use a temporary employee. If the employer does neither, the co-workers of the absent employee will simply need to work faster or harder.

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Under the Oregon scheduling law, if an employer requires an employee to work additional hours with less than seven days’ notice (14 days effective July 1, 2020), the employer must pay the employee one hour of compensation as a penalty, sometimes called “predictability pay.” The law purports to have an exception to address an “unexpected employee absence” but the exception seems inadequate.

The exception begins with the employer’s “voluntary standby list” (VSL), which an employer may, but need not, maintain. Employees wishing to work additional hours may sign the list. If an employer needs to fill additional hours due to an unexpected employee absence, the employee must first offer the additional hours to those on the VSL but cannot require them to work the additional hours.  An employee’s signing the VSL seems to be merely an indication that if asked to work additional hours, the employee might be interested.  If someone from the VSL works the additional hours, no predictability pay is due.

  Continue reading

Paid Sick Leave Eyes on Rhode Island

The eyes of the paid-sick-leave world will be on Rhode Island this week. Yes, more municipalities will opt out of the Cook County Earned Sick Leave law during their last week to do so. But Rhode Island legislators have this week only to pass a PSL law and put an end to the wait for “State Number Eight” and to claim that title for itself.  Since no other state legislature is likely to enact a PSL in 2017, Rhode Island is the last possibility. The Ocean State’s legislative session ends Friday, June 30.

Both of Rhode Island’s neighbors–Connecticut and Massachusetts–as well as Arizona, California, Oregon, Vermont and Washington have a paid sick leave law.

The legislative sausage-making has been in high gear to try to reach a compromise on a PSL bill. The Senate bill reported out of the Labor Committee would require employers with at least eleven employees to allow employees to accrue paid sick leave at the rate of one hour for every thirty hours worked to a maximum of 32 hours in 2018 and 40 annually after that. The law would be effective January 1, 2018.

Sausage Making 2Kudos to the drafters for including specific provisions concerning employee abuse of paid sick leave. I had posted some time ago that this topic gets far too little legislative ink, and that if legislators wanted to draw more support from the business community, they need to acknowledge what everyone knows–some percent of employees abuse sick time and a PSL law is a powerful tool to give those abusers. The Senate bill says that: Continue reading

Cook County Nix Flurry as the End Nears

Come Alsip and Bridgeview and Burbank and Bellwood.

Come Hillside and Justice and River Grove and Homewood.

Come Orland Park and Palos Heights and Maywood.NIX

Welcome these Cook County municipalities to my nix list, those that have opted out of the county Earned Sick Leave Ordinance.  My list is now 45 municipalities long, which is approximately one-third of the municipalities within Cook County.

I posted last week that opting out of the county ordinance will be ending soon because the ordinance becomes effective July 1, 2017.  I continue to watch a handful of municipalities which will be voting soon on whether to opt out. I am also researching a few other municipalities which, supposedly have opted out, but I have been unable to confirm that they had, in fact, done so.  (If any readers know of any others, please let me know.) I speculate that come July 1, 2017, between fifty and fifty-five municipalities will have opted out of the county sick leave law.

I have listed the Cook County nix list on the PSL Laws and Resources page of my blog, just below the link to the Cook County Ordinance.

Cook County enacted the ESL Ordinance in October 2016. Generally, it requires covered employers to allow employees to accrue one hour of paid sick leave for every 40 hours worked. My posts about that Ordinance are here and here.