NYC Sick Time Law Now Includes Safe Time; Labor Contract Waiver Still a Non-Sequitur

New York City last week amended its Earned Sick Time Act to allow employees to use accrued time for reasons related to domestic violence. The amendment states that an employee can use accrued safe and sick time for a variety of itemized activities when the employee or a family member has been a victim of a family offense matter, human trafficking, sexual offense or stalking, and adds definitions of each of these terms.  The amendment renames the bill the New York City Safe and Sick Time Law. It is effective  May 7, 2018, which is six months from the day the Mayor signed the bill.


The amendment caused me to revisit a provision of the NYC law which I have always considered to be an irksome PSL non-sequitur. Section 20-916 allows employers and unions to agree to “expressly” waive all of the provisions of the safe and sick time law as long as the labor contract “provides for a comparable benefit.” “[H]oliday and Sunday time pay at premium rates” is one of the listed examples of a “comparable benefit.”

Where such a wavier exists and the labor contract includes premium pay on holidays and Sundays, bargaining unit employees must still decide between a paycheck and caring for a sick child, and now, between a paycheck and the employee’s or family member’s own safety. Some employers are not even open on holidays or Sundays. Even with those that are, the law does note require that all employees be offered the opportunity to work, i.e., earn premium pay, on any of those days.

“I don’t have any sick or safe time but I have premium time on a holiday and Sundays” seems like a non-sequitur to me.  It reminds me of a conversation between Alice and the Hatter in Alice’s Adventures in Wonderland:

“You should learn not to make personal remarks,” Alice said with some severity. “It’s very rude.” The Hatter opened his eyes very wide on hearing this; but all he said was, “Why is a raven like a writing-desk?”

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



Minneapolis’ Paid Sick Leave at State Supreme Court; Duluth’s at City Council

Let’s revisit the Minnesota Melee. In September, the state Court of Appeals declined to enjoin the Minneapolis Sick and Safe Time Ordinance as it applied to businesses within the City’s geographic boundaries but enjoined it with regard to businesses outside the City limits.  I noted then that the decision would be of keen interest in Duluth since a Safe and Sick Time Task Force was working diligently toward making a PSL recommendation to the Duluth City Council.

The plaintiffs in the PSL litigation, a cadre of business interests, have asked the Supreme Court of Minnesota to review the Court of Appeals decision. The City of Minneapolis last week opposed the request, but added that if the Court agrees to hear the plaintiffs’ appeal, it should also hear the City’s appeal of the decision enjoining the Minneapolis law with regard to businesses outside of the City limits. The plaintiffs’ petition for review is here; the City’s response to the petition and conditional request for cross-review is here.


In Duluth, the Task Force will present its report to the City Council on Monday, November 20. The Task Force has two recommendations. The majority recommendation has the typical PSL-ordinance architecture. Accrual would be at the rate of one hour for every 30 hours worked. The Task Force did not have a consensus on an annual cap or rollover provisions. The second recommendation, a more basic approach, would require employers to have a written policy publicly available providing at least three days of PSL annually for full time employees, a pro-rated amount for part time employees.

Thus, the current state of PSL in the North Star State is that the Minnesota Supreme Court will decide the fate of the Minneapolis PSL ordinance, which will decide the fate of the analogous St. Paul ordinance, and which will define the parameters for the Duluth City Council in any PSL ordinance it may consider.


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.


Washington State Paid Sick Leave Effective Date Nears

A year ago today, Washington State voters approved Initiative 1433, which requires employers to provide paid sick leave to employees beginning on January 1, 2018. My posts about that Initiative are here and here. The Washington State Department of Labor and Industries has been preparing rules and documents to assist employers with compliance and to notify employees of their rights under the Initiative.wa-seal

After a notice and comment period and public hearings, on October 17, the Department adopted paid sick leave and retaliation rules. The Department is working on a second set of rules relating to enforcement of the paid sick leave and retaliation provisions. Public hearings on the proposed rules are being held today and tomorrow. Comments must be submitted by November 17. The rules are scheduled to be finalized by mid-December.

Initiative 1433 requires that employers have written policies to address specific issues such as employee notice and verification requirements, front-loading and a shared leave program. The Department recently posted “initial drafts” of policies on each of these issues. The Department seeks comments on these policies by the close of business tomorrow, November 9. The draft policies are:

In planning your workload to comply with Initiative 1433, note that in its Preliminary Cost Benefit Analysis, the Department estimates that it should take between 6.25 and 17 hours for an employer to research the law and policy options, draft and communicate the policy to employees, and train employees on the policy. If the employer does not adopt a front-loading or shared leave policy, it would take a few hours less. To update a current PSL policy to address these issues should take between 2 and 5 hours, according to that Analysis.

Kudos and a PSL hat-tip to the Washington State Department of Labor and Industries for its efforts to keep stakeholders informed through its dedicated Initiative 1433 website and regular email updates.


An Escape from the Paid Sick Leave Patchwork?

Imagine there’s no local, county or state paid sick leave laws. It isn’t hard to do,  if federal bill H.R. 4219, introduced last week, gets enacted. With the latest human resources portmanteau in its title, the Workflex in the 21st Century Act would expand ERISA preemption to annihilate the patchwork of paid sick leave laws for any employer who elects to opt out of those 40+ PSL laws by opting into this law. The ultimate PSL opt out!

How does an employer escape from the PSL patchwork? By voluntarily adopting a written “qualified flexible workplace arrangement” (QWFA) that provides the required minimum amount of “compensable leave” and by offering employees at least one of the listed “workflex options.”  ERISA would preempt state or local laws that relate to a QWFA plan with regard to employees covered by such an arrangement, according to the bill.

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The required amount of compensable leave varies depending on the size of the workforce and an employee’s length of service.  Employees with less than five years of service must receive from 12-16 days, depending on the workforce size. Those with longer service must receive from 14-20 days.  Leave is pro-rated for part-time employees. Unlimited PTO policies are “deemed” to satisfy the compensable leave requirement.   An employer can get credit toward these minimums for up to 6 paid state or federal holidays.

The QWFA must offer all employees at least one flexibility option though it need not be the same option for all employees.  An employee’s acceptance of the option is voluntary and the employee can withdraw from it. The choices are:

  • A biweekly work schedule of 80 hours over two weeks with the employee receiving overtime after those 80 hours rather than after 40 hours in a week (state and local laws that require an employer to pay overtime other than as set forth in this law for an 80 hour, two-week schedule would be preempted).
  • A “compressed work schedule” in which an employee works longer hours on fewer workdays, i.e., 4-10 hour shifts (here also, any state or local law that requires overtime for such a schedule other than as set forth in this law would be preempted).
  • Job sharing, in which a job is shared among two or more employees.
  • Flexible scheduling, in which an employee’s regular schedule is modified.
  • Predictable scheduling, in which an employer provides a work schedule “with reasonable advanced notice” that is subject to “as few alterations as are reasonably possible.”
  • Telework, allowing work to be done somewhere other than the normal place of business.

The bill has been referred to U.S. House Committee on Education and the Workforce. Given the political environment in our nation’s capital, a prediction about this or any other bill is pure speculation. But given the dramatic impact this bill would bring to American workplaces, for those in the leave management community, this is one to watch.

Note: For my paraphrasing of some popular lyrics in the first two sentences of this blog, thanks and a PSL hat-tip to John Lennon.


The ADA is Not a Medical leave Entitlement Redux

Not a month since its Severson decision holding that the ADA does not create a medical leave entitlement and thwarting the EEOC’s assault on “inflexible leave” policies, the Seventh Circuit reiterated that holding in yet another case.

In Golden v. Indianapolis Housing Agency, the court affirmed summary judgment to an employer who had granted the plaintiff her 12 weeks of medical leave under the FMLA and an additional four weeks of leave under the employer’s policy, but denied her request for six additional months of unpaid medical leave.

The court said that the ADA’s “‘qualified individual’ requirement is fatal to Golden’s case. We recently reaffirmed that “[a]n employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA,” citing Severson (emphasis in original).


Concurring, Circuit Judge Rovner questioned the circuit precedent which led to the result in Golden. Noting that these precedents had left open the possibility that the ADA may require an employer to provide short term leave, he asked: “But what sense does it make that the ADA could require an employer to accommodate an employee with lupus who requires one week leaves, several times a year, every year, but can never require an employer to accommodate an employee who needs a one-time leave of four or five months to recuperate from, for example, a kidney replacement?”

As I have said numerous times, the Supreme Court of the United States, eventually, will resolve the issue of whether, and to what extent, the ADA provides a medical leave entitlement. Perhaps the plaintiff in Severson or Golden will seek Supreme Court review!

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.