In addition to focusing on leave management issues for the past few decades, I have also negotiated many collective bargaining agreements and represented employers in other “traditional labor law” issues. Earlier this summer, legal publisher Wolters Kluwer, a global provider of professional information, software solutions and services, asked me to write a monthly article about a labor issue. “On the Labor Front” is the name of the column. Here is the link to my first article, which discusses a first in our country’s history: campaign employees in five presidential campaigns have chosen to be represented by a union.
As unionized employers know, dealing with leave management issues within the confines of a collective bargaining agreement presents unique challenges. The intersection of leave management laws and collective bargaining agreements has been of great interest to me and will be addressed in upcoming On the Labor Front articles.
I hope you enjoy the article. As always, I welcome your comments.
Bernalillo County Commissioners (NM) last night approved by a narrow margin an “any reason” leave law. The initial proposal was a paid sick leave bill but in June, after Maine and Nevada passed “any reason” leave laws, the Commissioners decided to consider a broadened “any reason” proposal.
The Employee Wellness Act applies to employers in the unincorporated limits of the County, which excludes the City of Albuquerque. The ordinance considered last night stated that it is effective July 1, 2020 though an ABQ Journal article noted that the ordinance is effective July 1, 2020. We will need to see the effective date in the final version of the amended ordinance when it becomes available.
The County ordinance has the typical PSL architecture less the list of approved uses. Employees accrue PSL at the rate of one hour for every 32 hours worked to a maximum of 56 hours annually. At the meeting last night, the Commissioners agreed to phase into that 56 hour cap, according to the ABQ Journal. The maximum accrual in the first year of implementation is 24 hours; 40 hours in the second year; and 56 hours in the third year.
With Maine, Nevada and now Bernalillo County having passed “any reason” leave laws, we may be seeing the end of PSL laws as we have known them and are evolving to what I will call PSL 2.0 laws, which are structurally similar to a PSL law less the limitations on the use of accrued time.
The Supreme Court of Pennsylvania held recently the City of Pittsburgh had authority to enact the Paid Sick Days Act. This opinion reverses a lower court opinion and frees the PSDA from the legal limbo it has been in since its enactment in 2015.
The Court’s July 17 decision was based on the state’s Home Rule Charter Law which limits the City’s authority to regulate business “except as expressly provided by statutes…” Determining the scope of that business exception is a “vexing question,” the Court said but held that Pittsburgh has the right to protect the health and safety of its residents under various statutes and that the PSDA was an exercise of that right.
Enforcement of the PSDA had been enjoined pending the outcome of the legal challenge to it. It is unclear when Pittsburgh will begin enforcing the PSDA and how it will deal with the fact that employers were supposed to have allowed employees to accrue and use sick leave for the past 3 1/2 years.
The PSDA hews to the typical architecture of a PSL law. Employees of employers with at least fifteen employees accrue one hour of paid time for every 35 hours worked, to a maximum of 40 hours annually. Employees of smaller employers accrue up to 24 hours of unpaid sick time during the first year of the PSDA’s implementation and up to 24 hours of paid time subsequently.
More than a year ago, I posted about the paid sick leave turbulence in the Lone Star State. The turbulence lives on.
Austin, San Antonio and Dallas have enacted PSL ordinances. Cadres of business interests have sued to enjoin each.
It started in Austin. Last November, a Texas appellate court ruled that the Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA). The City of Austin has asked the Texas Supreme Court to hear an appeal of that decision. The Austin PSL ordinance was to be effective on October 1, 2018 but its implementation has been enjoined pending the outcome of the litigation.
The San Antonio Earned Paid Sick Leave Ordinance was to be effective today, August 1. On July 15, a lawsuit was filed seeking to enjoin implementation of the ordinance. The lawsuit raised a myriad of constitutional claims as well as the TMWA preemption claim. The plaintiffs and defendants have agreed to postpone the ordinance’s implementation date until December 1, 2019.
The Dallas Earned Paid Sick Time Ordinance is also scheduled to be effective today. Two days ago, a cadre of business interests sued to enjoin its implementation.
Meanwhile, the Texas Legislature failed to enact a PSL preemption law this past session, which many had thought would make litigation unnecessary. As of now, the viability of the three PSL ordinances lie with the judiciary.
More PSL turbulence to come in Texas before it settles down, I suspect.
The vast and complex patchwork of PSL laws expanded in the second quarter of 2019. The most notable development was the addition of two laws with PSL architecture but allowing paid leave to be used for any reason, not merely for sick leave.
None, though some introduced previously remain pending.
Paid Sick Leave Preemption Developments
Alabama: The Eleventh Circuit Court of Appeals has decided to hear the challenge to Alabama’s minimum wage and employment benefits preemption law en banc, meaning that all of the Court’s judges will hear the case. The Court held oral argument on June 25, 2019. 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. The plaintiffs brought various race-based challenges to the Act, all of which were rejected by a federal district court last year. Last July, a three-judge panel of the Eleventh Circuit affirmed the dismissal of all claims except the “equal protection” constitutional claim. Marnika Lewis v. State of Alabama et al. (11th Cir) (Case No.17-11009)(11th Cir. July 25, 2018).
Paid Sick Leave Litigation
Challenges to state PSL laws
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 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.” In the Massachusetts case, the plaintiff filed a motion for summary judgment on November 30, 2018, which remains pending. 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). A handful of airlines have raised similar challenges to the NYC PSL law as well.
Michigan: 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.
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. 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 City of Austin has asked the Texas Supreme Court to hear an appeal of that decision. The Austin PSL ordinance was to be effective on October 1, 2018 but its implementation has been enjoined pending the outcome of the litigation. Texas Ass’n of Business et al v City of Austin, Texas et al (TX Ct of Appeals, Third District, Case. No. 03-18-00445-CV, November 16, 2018).
Other Paid Sick Leave Developments To Watch
Bernalillo County, NM: The Board of Commissioners tabled a proposed PSL ordinance to consider transforming it to an “any reason” ordinance by deleting the limits on the use of accrued time.
Minneapolis: As a result of a recent court of appeals decision, beginning July 3, 2019, Minneapolis began enforcing its Sick and Safe Time Ordinance 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.
Albany County, NY and Portland, ME legislatures defeated PSL bills this past quarter.
Managing FMLA intermittent leave continues to vex employers. Terminating an employee with an intermittent leave certification usually carries significant legal risk. A Minnesota federal court decision two weeks ago upheld an employer’s termination for excessive absenteeism of an employee with an intermittent leave certification. The court rejected the plaintiff’s numerous FMLA and ADA claims and granted summary judgement to the employer. The decision is a must-read for leave management professionals.
The plaintiff’s health care provider had certified that the plaintiff would need up to two full days and two half days of intermittent FMLA leave per month for her serious health condition. In its email approving the requested leave, plaintiff’s employer told her that “[a]ny absences above and beyond the FMLA approved frequency will be considered regular absences and will be eligible for attendance points per policy.”
On six dates, plaintiff sought to use FMLA in excess of her monthly allotment as stated on the med cert form. She received attendance points for these excess absences and for other non-FMLA related absences. Based on her accumulated points, she was terminated for excessive absenteeism under the employer’s policy.
Among her legal claims were claims were that she was discriminated against in violation of the ADA and that that the employer should have granted her more leave without incurring attendance points as a reasonable accommodation. In rejecting the ADA discrimination claim, the court concluded that she could not perform the essential functions of her position and, thus, was not a qualified individual with a disability because she “could not come to work on a regular and reliable basis.”
In rejecting the failure-to-accommodate claim, the court said that her requested accommodation–“being absent from work more frequently”—was not reasonable because it “does not enable [the plaintiff] to perform the essential functions of her job.”
For those tracking inflexible leave developments, this decision adds to that jurisprudence.
One month ago, writing about the recently-enacted Maine leave law, I urged readers to watch for “bills to amend PSL laws to delete the often lengthy and specific ‘allowed uses’ provision and replace it with two words: any reason.” The Bernalillo County (NM) Board of Commissioners last night took the first step down that road. The Board voted to table the proposed sick leave ordinance to consider an amendment that would delete the limits on the use of accrued time, transforming the PSL law to an “any reason” ordinance.
With Maine and Nevada recently having passed “leave for any reason” laws and the Bernalillo County Commissioners action last night, we may be seeing the end of PSL laws as we have known them and are evolving to what I will call PSL 2.0 laws, which are structurally similar to a PSL law less the limitations on the use of accrued time.
A vote on the Bernalillo County (NM) Sick Leave Ordinance is on the agenda for today’s Board of County Commissioners meeting. The proposed ordinance applies to employers in the unincorporated limits of the County, which excludes the City of Albuquerque.
The County ordinance has the typical PSL architecture: employees accrue PSL at the rate of one hour for every 30 hours worked to a maximum of 56 hours annually. An employee can carryover up to 56 unused hours. It has some nuances, as most PSL laws do. In addition to including a broad definition of “family member,” this ordinance allows an employee to designate an addition individual to care for. It also allows a successful plaintiff to recover liquidated damages equal to “three times the value of the earned sick time accrued.”
While it is always a challenge to handicap the likelihood of a PSL ordinance passing, the stars seem aligned for this ordinance to pass. The five member Board of County Commissioners has four Democratic members., two of whom–the Chair and Vice-Chair–have sponsored this ordinance. I’ll blog tomorrow about the outcome in Bernalillo County today.
To grant an employee more medical leave than the maximum set out in the collective bargaining agreement is an undue hardship under the ADA, according to a decision earlier this month by a federal district court in the Eastern District of Pennsylvania.
The labor contract covering the plaintiff’s employment granted employees up to 90 days of sick leave, after which an employee either had to return to work, be transferred to a light duty position or resign and file for permanent disability.
After taking all of the sick leave granted him under the labor contract, the plaintiff requested an additional week of medical leave. His employer denied the request and terminated plaintiff’s employment. Rejecting the claim that his termination violated the ADA, the court said that allowing the plaintiff to have additional leave would have violated the labor contract and was unreasonable. As a result, the plaintiff was not a qualified individual with a disability.
To ensure fair and uniform treatment, labor contracts include many terms and conditions of employment that apply to all bargaining unit members, without exception. An employer’s obligation under the ADA to provide a reasonable accommodation is, in effect, a duty to make an exception in some situations. The ADA itself provides no guidance to employers about how to reconcile these apparently conflicting obligations. This court’s decision reconciles them by holding that the inflexible leave policy (aka maximum leave policy) in the labor contract trumps the ADA-imposed duty to consider granting additional leave as a reasonable accommodation. However, just as courts have split on the issue of whether an inflexible leave policy applicable to non-union employees violates the ADA, other courts may reconcile an employer’s ADA and labor contract obligations differently than this decision.
While Maine may have been the first state to pass a paid “any reason” leave law, Nevada was a close second. Just a few weeks after the Maine bill was signed, Nevada Governor Steve Sisolak yesterday signed a bill requiring private sector employers with at least 50 employees to allow employees to accrue paid leave which may be used for any reason. The Nevada law is effective January 1, 2020.
The architecture of the Nevada law is similar to that of a typical PSL law minus the definitions related to appropriate use (e.g., family member). Employees accrue .01923 hours of paid leave for each hour of work performed, which amounts to approximately 40 hours annually for an employee who works 40 hours weekly. An employer may limit an employee’s use of paid leave to 40 hours annually. Employees may carryover up to 40 hours of unused paid leave. An employer may choose to front load the leave or use the accrual method. Employers can require employees to use leave in a minimum of four-hour increments and must provide employees an accounting of available paid leave each payday. The law is here.
Temporary, seasonal and on-call employees are not entitled to accrue paid leave. In addition–and this is the provision I suspect many Silver State employers will focus on initially–the law does not apply to an employer who “pursuant to a contract, policy, or collective bargaining agreement, or other agreement, provides employees with a policy for paid leave or a policy for paid time off to all scheduled employees” at the same accrual rate in the law.
That a second state has enacted a PTO mandate suggests that this approach might be the next step in the evolution of PSL laws. A bill is also pending in New York City to require employers to provide employees with paid vacation in addition to the already required paid sick and safe time.