The Super Bowl Flu has hit Hawaii corrections officers hard the past few years. This year, 213 of 733 officers, almost 30%, called out sick on Super Bowl Sunday, according to a report citing the state Department of Public Safety. That number of call-outs is fewer than both last year, when 260 called out sick on Super Bowl Sunday, and 2016 when 230 called out sick for the big game. My post about the 2017 Super Bowl Flu outbreak is here.
The Washington State Paid Sick Leave Act (WPSL) as applied to pilots and flight attendants is unconstitutional and preempted by the federal Airline Deregulation Act (ADA), according to a complaint filed last week in federal court by the Air Transport Association of America, doing business as Airlines For America (A4A), an association of airline carriers. Complying with the various paid sick leave laws that could apply to flight crew will lead to “mass confusion.” Applying the WPSL to flight crew will lead to “delays, cancelled departures and, in some cases, closed bases of operations,” according to the complaint.
The WPSL law is unconstitutional because it violates both the “dormant” Commerce Clause and the Fourteenth Amendment, according to the complaint. The Commerce Clause gives Congress authority to regulate interstate commerce. The dormant Commerce Clause is a misnomer since it not a clause at all. Rather, it is the concept that implicit in the affirmative grant of authority to Congress is an implicit restriction on the ability of state and local governments to impose an unreasonable burden on interstate commerce.
The Fourteenth Amendment states: No state shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law.” The complaint alleges that because “the bulk of the work done by A4A’s member airlines’ flight crews is wholly or mostly outside of Washington’s borders, the [WPSL] constitutes an extraterritorial application of Washington law in violation of the Fourteenth Amendment.”
The plaintiff also alleges that the ADA preempts the WPSL law because it relates to a “price, route or service of an air carrier,” because, for example, the WPSL “impedes A4A’s member airlines’ abilities to enforce attendance and reliability policies designed to ensure safe on-time and efficient operations.”
The plaintiff seeks a declaration that the WPSL law is unconstitutional and preempted by the ADA with regard to flight crew and an injunction prohibiting the Washington Department of Labor and Industries from enforcing the WPSL against member airlines.
Washington voters approved Initiative 1433—the WPSL law–in November 2016. It went into effect on January 1, 2018. A state court last year rejected claims brought by a cadre of business interests that the law violated the state constitution. My post on that decision is here.
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
How many employees at your company called out sick today? I suspect it’s many more than on a typical Monday. An estimated 13.9 million Americans will call out sick today, the day after the Super Bowl, according to a recent survey by the Workforce Institute at Kronos and Mucinex. About one in five employees have reported that they have called out sick the day after the Super Bowl, according to the survey.
It seems that many have declared Super Bowl Monday their own personal holiday. Paid sick leave laws enable these absences by making calling out a low to no-risk undertaking. “I am sick today. I cannot come to work” is all PSL laws require for an employee to get a Super Bowl pass from attendance policies.
An employee who uses PSL time has no need to worry about cross-examination by the boss concerning the reason for the absence. PSL laws prohibit employers from asking or requiring any information about the condition for which PSL time is used.
No need for an employee who calls out to be concerned about a request for medical documentation either. PSL laws, generally, prohibit employers from requiring employees to produce medical documentation to substantiate the absence unless the employee has been out at least three days.
While every jurisdiction, I suspect, would proclaim that its PSL law does not sanction fraud and that an employer need not tolerate fraud ever, even on Super Bowl Monday, by requiring employers to take an employee’s word about the need for leave, and prohibiting further inquiry or substantiation of the need for leave, PSL laws are huge, perhaps insurmountable, obstacles for an employer wanting to investigate PSL fraud.
With so much absence on Super Bowl Monday, and lost productivity from those who manage to get to work, some have suggested making Super Bowl Monday a national holiday. That might make sense, After all, no employee should have to choose between recovering from Super Bowl festivities and a paycheck, should they?
In Austin, Texas, whose slogan is “Keep Austin Weird,” the proposed paid sick leave ordinance its City Council will consider on February 15, 2018 did not heed that slogan’s injunction. It is not weird at all. In fact it has the classic PSL architecture of every other PSL law in the nation.
The January 19 draft ordinance would allow private sector employees who work at least 80 hours in a calendar year within the city to accrue PSL at the rate of one hour for every 30 hours worked, to a maximum accrual of 64 hours annually. Unused sick time shall be carried over to the following year, subject to the 64 hour annual usage cap. An employee can use accrued time as it accrues, without any waiting period, for the employee’s own or a family member’s illness, injury, health condition or preventive care or for an absence related to domestic abuse, sexual assault or stalking involving the employee or a family member.
As we have seen, a state’s status as a blue state increases the chances that a PSL will pass while those chances are decreased in a red state. Austin’s situation requires a bit of nuance.
In the 2016 presidential election, Texas was a red state: 53% of Texans voted for President Donald Trump while 43% voted for Secretary Hillary Clinton. However, Travis County, of which Austin is the seat, was deep blue, with 66% of votes cast for Secretary Clinton and 27% for President Trump. Given that Travis County is a deep blue enclave in this red sea, I speculate, which is always dangerous, that the odds are better than even that the Austin PSL ordinance will pass. The next obvious question is whether if it did pass, would Texas then consider a preemption bill to ban political subdivisions from enacting local PSL laws, effectively negating the Austin ordinance? That requires a deeper look into my crystal ball than I am comfortable with right now. Stay tuned.
The Mount Rushmore State came to the paid sick leave table yesterday with the introduction of Senate Bill 120. Sponsored by thirteen Democratic legislators, the bill has been referred to the Senate Commerce and Energy Committee.
The bill has the typical PSL architecture but with a few unusual exclusions. Employees of employers with at least fifty employees would accrue paid safe and sick time at the rate of one hour for every 30 hours worked to a maximum of 48 hours per calendar year. Employees would be able to use the accrued time after 90 days of employment for the usual reasons.
Non-profit organizations under IRC 501(c)(3) are exempt from the law. Executive, administrative, professional and construction employees are also not covered. Employees covered by a labor contract or other agreement that provides at least 24 hours of paid leave annually which can be used for the reasons in the law are also exempt from coverage.
For those who believe a state’s status as a blue state increases the chances that a PSL will pass while the chances are decreased in a red state, the odds that S.120 will pass are not very good. In the 2016 presidential election, South Dakota was a deep red state. More than 61% of the electorate voted for President Donald Trump while less than one-third voted for Secretary Hillary R. Clinton. Both the House and Senate have large Republican majorities.
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).