Paid Sick Leave Laws – Policy Challenges for Employers Title of Presentation Steve F. Pockrass

Introduction Multijurisdictional employer challenges:   

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A plethora of sick pay laws General similarities, but little uniformity Administrative complications Potential liability

Multijurisdictional Considerations  Accrual

rates  Accrual caps and rollovers  Covered family members  Covered events

Multijurisdictional Considerations Waiting periods after hire  Payout rates  Combining into PTO  Collective bargaining waivers 

Statewide Paid Sick Leave        

California Connecticut Massachusetts Oregon Vermont (1/1/17) Washington, D.C. Maryland (Passed House, In Senate) New Jersey (In Senate)

City/Local Ordinances   

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Montgomery County, MD New York City, NY New Jersey (Newark, Passaic, East Orange, Paterson, Irvington, Trenton, Montclair, Bloomfield, Jersey City, Elizabeth, Plainfield, New Brunswick) Philadelphia, PA Washington (Seattle, Tacoma, SeaTac, Spokane (eff. 1/2017)) Minneapolis, MN (eff. 7/2017) Chicago, IL (eff. 7/2017)

City/Local Ordinances California:       

Emeryville Long Beach (hotels) Los Angeles Oakland San Francisco San Diego Santa Monica (eff. 1/2017)

Government Contractors Executive Order 13706 (eff. 1/1/17)  Federal government contractors:   

(1) Davis-Bacon Act construction; (2) Service Contract Act services; and (3) concessions contracts

Accrual Rates  

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Most generous accrual rates: 1 hour per 30 hours worked Some jurisdictions have lower rates (1/40 in Connecticut, 1/52 in Vermont, 1/35 in Pittsburgh, 1/87, 1/43 or 1/37 in Washington, D.C.) California expressly allows a lump sum 24 hour allocation

Can We Cap Accrual?  

The most common allowed cap is 40 hours Others include:         

24 hours in CA “use” cap and 48 hour “accrual” cap 24 hours in Tacoma, WA 40 or 72 hours* in Oakland and San Francisco, CA 48 or 72 hours* in Emeryville, CA 24 or 40 hours* in NJ cities (except Jersey City) 40, 56, 72, or 108** hours* in Seattle, WA 24, 40, 56 hours* in D.C. 24 or 56 hours* in Montgomery County, MD 48 hours in Minneapolis, MN

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*Depending upon employer’s employee headcount.

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**If the employer uses a PTO policy.

Accrual Rates and Caps 

Strategy 1: Provide a “most favorable” standard 1/30 accrual for all jurisdictions 

And caps: 72 hours

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Strategy 2: Provide the minimum amount required in each jurisdiction (in many states it is zero)

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Strategy 3: Provide a standard minimum and provide “extra” where mandated 

Caps: consider 40 hour use limit per year

Can We “Frontload” Accrual? 

Yes. However, frontloading isn’t without problems. 

How much to frontload? Irregular working hours  Exempt employees that work more than 40 hours 

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Can we prorate for first year or partial years? Do we carry over when frontloading?

What Employees Are Covered? 

Full-time and part-time employees CA – 30-day requirement  Many cities with an 80-hour minimum (NJ cities, Minneapolis, Chicago, NYC, etc.)  Spokane – 240-hour requirement  Many cities with a 2-hour per week minimum (Oakland, Santa Monica, Los Angeles) 

What Employees Are Covered? Seasonal employees  Temporary employees  Special problem: employees in and out of sick pay city 

What “Family Members” Are Covered? Most Jurisdictions Cover:      

Children (regardless of age or dependency status) Parents Spouse/registered domestic partner Grandparents Grandchildren Siblings

What “Family Members” Are Covered? Some Jurisdictions Cover More:  

SFO, Oakland: Designated person Emeryville: Service dog

Some Cover Less:  

CT: Children and spouses MA: Children, spouses, parents, parents in law

How Is “Child” Defined? 

Nearly always broadly defined to include: 

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Biological, adopted, or foster children Stepchildren and children of domestic partners Legal wards or children for whom the employee stands “in loco parentis”

Covered Family 

Recommended strategy: Include spouse/partner, child, parent, sibling, grandparent and grandchildren  “Add-ons” for certain jurisdictions 

Covered Absences 

Diagnosis, treatment, or care of: 

  

Employees’ health conditions  Physical and mental Family members’ health conditions Includes preventive care Includes non-medical care (e.g., staying home with sick child)

What Else Is Covered? 

Domestic violence, sexual assault, and stalking

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Public health emergencies Business closings  School closings 

Covered Absences Recommended Strategy:  Cover absences for diagnosis, treatment and care, and domestic violence  Add in extras for certain jurisdictions

When Can Employees Accrue or Use? 

In general, accrual begins immediately. 

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San Francisco requires 90-day wait

Most jurisdictions have a 90-day waiting period for usage    

680 hours of work for CT 120 days for NYC and New Brunswick 180 days for Seattle, Chicago, and Tacoma, WA No waiting period for Long Beach, CA or SeaTac, WA

Can We Limit Usage Increments? 

Yes, but these increments may be small Most require 1 hour or the smallest your payroll system can handle (whichever is smaller)  CA allows 2-hour increments 

Must We Allow Carryover? 

Yes, barring some frontloading options

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Can we limit carryover?  

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Most jurisdictions match carryover with accrual caps Oakland and San Francisco allow 24 or 72 hours depending upon employee headcount Long Beach, CA and SeaTac, WA do not address carryover

Can We Use Our Existing PTO Policy? 

Yes, if existing PTO, vacation, other sick leave policy makes available:  Same amount of leave;  Used for same purposes; and  Used under same conditions as required.

Can We Use Our Existing PTO Policy? 

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And, if existing policies generally:  Satisfy accrual, carry over, and use requirements; or  Provide minimum required annual sick leave on a frontloaded basis. Note: Laws generally cover part-time employees

PTO Policy  How

this can be a problem:

Covering PT employees  Accrual rate too low  Accrual per pay period rather than per hour  Restrictions such as notice and use 

PTO Policy  How this can be a problem: Unscheduled absences vs. vacations  Abuse  Cash outs mandatory in some states  Retaliation claims 

How Do We Calculate Payment Rate?    

Commissioned employees Piece rate payment Bonus payments Variable hourly rates for overtime or shift premiums

Notice Requirements    

Notice of available paid sick leave often required via pay stub or other regular notice Recordkeeping for exempt employees Individual employee notice requirements Posting requirements 

Conspicuous location

Where Does Our CBA Fit In?    

Does my CBA exempt me from paid sick leave? Does my CBA provide equal or greater paid sick leave? Must I provide additional paid sick leave? Is this a mandatory subject of bargaining?

Do the Details of My Workforce Matter? 

YES!

Part-time v. full-time employees  Exempt v. non-exempt employees  Stationary v. mobile employees  Telecommuters  Geographic diversity 

What Is Prohibited? 

Employers generally may not: Deny accrual or use of paid sick leave  Discriminate or retaliate for usage  Discriminate or retaliation for exercising rights  Require employees to find a “replacement” 

What Must Our Policy Include? Availability of paid sick leave  Amount of paid sick leave available  Reasons for taking sick leave  Information on accrual method 

What Must Our Policy Include? Information on mechanics of usage  Recordkeeping information  Non-retaliation/non-discrimination language 

Preparing for Compliance 

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Determine whether uniform policy or individual policies for states/cities Elect accrual or frontloading method Revise policies to include statutory reasons for leave and anti-retaliation Educate managers

Preparing for Compliance 

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Make sure wage statements include sick leave, if required Update employee handbook, if required Distribute individual notices, if required Distribute postings

Paid Sick Leave Laws – Policy Challenges for Employers Title of Presentation Steve F. Pockrass