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By Leslie A. Pappas
May 12 — Legislation mandating sick leave for private sector workers is gaining traction in state and local legislatures, and employers in impacted locales—and even nationwide—need to be aware of the movement and prepared to potentially have to change policies.
Philadelphia's new sick leave law went into effect May 13, making Pennsylvania's largest city the first in the state and the latest of more than a dozen municipalities nationwide to enact a local ordinance requiring employers to provide paid sick days.
The ordinance (City Code Chapter 9-4100) requires Philadelphia employers with 10 or more workers to offer an hour of paid sick leave for every 40 hours an employee works, up to 40 hours maximum per year.
“Employers not currently affected by a paid sick leave law should carefully monitor any developments at the federal and local level and should prepare themselves for the possibility of mandatory paid sick leave becoming a reality for their operations,” attorneys said.
It's a bitter pill to swallow for some state legislators, who moved to block the city ordinance even before Mayor Michael A. Nutter (D) signed it into law Feb. 12. On April 14, Pennsylvania's Republican-controlled Senate voted 37-12 on a bill that would prevent any of the commonwealth's 2,500-plus local governments from passing their own sick leave policies.
“Local mandates such as this not only create an uneven playing field for the businesses located inside the municipality, but as more governments jump on board, businesses with more than one location are forced to comply with a variety of different and changing mandates,” the bill's sponsor, Sen. John Eichelberger (R), wrote in a memo when the bill was introduced Jan. 7.
Neighboring New Jersey, meanwhile, has passed nine local sick leave ordinances to date, more than any state in the country, the most recent being in Bloomfield, a township about 15 miles outside of New York City in Essex County that has a population of 50,000.
Pennsylvania and New Jersey embody the push and push-back of a growing sick leave trend: In some states such as New Jersey, Washington and Oregon, multiple municipalities are marching ahead with their own rules. Elsewhere, state legislators are stepping in to prevent localities from doing their own thing.
The sick leave trend is not just a grass roots effort. President Barack Obama in January called on Congress, states and cities to pass legislation to offer sick leave, and proposed more than $2 billion in new funds to encourage states to develop paid family and medical leave programs.
On the corporate side, Microsoft announced in March that it would require “a wide variety of suppliers that do business with Microsoft” to provide their employees with at least 15 days of paid leave each year.
Bloomfield's new sick leave law will affect an estimated 8,600 workers in the township, Bloomfield Mayor Michael Venezia (D) told Bloomberg BNA May 11.
The council considered the ordinance after being approached by the New Jersey Working Families Alliance, a nonpartisan group that has spearheaded a campaign for local sick leave ordinances throughout the state. It was motivated in part by the realization that sick leave had strong popular support, but a statewide law was unlikely because Gov. Chris Christie (R) would likely veto any statewide legislation, Venezia said.
A statewide sick leave ordinance in New Jersey probably is more than two years away, but nearby cities like Montclair and Jersey City have shown a local ordinance can work, Venezia said. “We thought the timing was perfect to get it done,” he said.
Analilia Mejia, executive director of the New Jersey Working Families Alliance, told Bloomberg BNA May 8 that Christie's reluctance to sign a statewide law is what prompted the local campaign.
“We had a choice of whether we could just sit down and wait until there was a new governor in New Jersey, or figure out a different way,” she said. “So we spearheaded this idea that all politics are local.”
About 10 percent of New Jersey's 1.2 million workers who once lacked paid sick leave now have it because of the nine local ordinances, Mejia said.
The group continues to push for local ordinances as well as statewide sick leave legislation, and members of the Senate and Assembly have expressed commitment to getting a bill passed, Mejia said. She said her group's goal is to get the bill in front of the governor by the end of the legislative session at the end of December. “[G]etting sick and wanting to care for one's family is not a Democratic issue, it's not a Republican issue,” Mejia added. “We think it's important that this [issue] be raised,” she said.
According to the National Conference of State Legislatures, only three states—California, Connecticut and Massachusetts—have a statewide law requiring paid sick leave.
Many more states have taken the opposite approach, banning localities from enacting sick leave ordinances entirely.
“There are 11 states that have passed legislation that prevents municipalities from passing their own sick leave laws,” Rachel Gonzalez, an attorney with Day Pitney's employment group in Parsippany, N.J., told Bloomberg BNA April 24. Wisconsin, Arizona, Florida, Georgia, Indiana, Kansas, Michigan, North Carolina and Tennessee bar municipalities from enacting local sick leave laws, Gonzalez told Bloomberg BNA.
Meanwhile, in states such as New Jersey, the growing number of local ordinances is making compliance increasingly complex, she said. In addition to Bloomfield, the New Jersey municipalities of Jersey City, Newark, Passaic, East Orange, Paterson, Irvington, Montclair and Trenton now have their own sick leave laws.
“Historically our employment group has given advice on federal and state laws. Now we have to give compliance advice on local laws,” she said. “The concern is that this may create another trend where we have not just sick leave but also [other types of] laws on the local level that will affect employers and employees.”
In March, several business organizations including the New Jersey Business and Industry Association, the state chamber of commerce, the New Jersey Food Council and others filed suit against the city of Trenton, hoping to invalidate its newly passed sick leave ordinance.
The business groups argued that the ordinance was unconstitutional, preempted by state law and sought to regulate matters “of statewide concern,” according to an April 7 blog post Gonzalez wrote.
Judge Mary Jacobson of the New Jersey Superior Court, 7th Vicinage, threw out the challenge in April.
Compliance issues with local sick leave laws go beyond simply whether leave is offered—employers also may need to keep track of which employees work at each location and for how long.
In Philadelphia, for example, the ordinance applies to employees who work within the “geographic boundaries of the City of Philadelphia,” a Feb. 17 alert from law firm Duane Morris points out. “Whether and how employers will limit accrual to employees who also work outside the City of Philadelphia is an issue for each employer to address.”
Day Pitney's Gonzalez told Bloomberg BNA that multiple ordinances in New Jersey are “becoming a very onerous record-keeping requirement on employers in addition to providing the sick leave.”
“Normally, the payroll is tracking the time the employee worked,” she said. “Now they have to track how much time they worked where.”
Mejia of New Jersey Working Families downplayed compliance problems, arguing that the nine ordinances in New Jersey are “almost identical,” and in Jersey City, which has a slightly different ordinance than the others, there is grass-roots support to bring the law in line with the other ordinances.
“Most of the pushback we've received has been due to a lack of understanding,” Mejia said. “This is a really simple mandate,' she said. “It's as simple as another line on an Excel spreadsheet.”
Given a growing movement to federally mandate paid sick leave, and with at least 16 cities and three states now having some type of sick leave law on the books, employers need to start preparing, according to attorneys Salvador Simao and David Kim, respectively partner and counsel in the employment law practice at FordHarrison in Berkeley Heights, N.J.
“From a big picture perspective, employers need to understand that paid sick leave has gained incredible traction over the last few years. In fact, all but four of the paid sick leave laws currently in effect were passed in 2013 or later,” Simao and Kim wrote in a Feb. 18 alert after Philadelphia's sick leave law passed. “Employers not currently affected by a paid sick leave law should carefully monitor any developments at the federal and local level and should prepare themselves for the possibility of mandatory paid sick leave becoming a reality for their operations.”
Pennsylvania employers may be wise to heed the advice. S.B. No. 333, the Eichelberger legislation that aims to bar Pennsylvania municipalities from passing their own sick leave policies, remains in committee and has not been given a corresponding bill number in the House. Gov. Tom Wolf (D) is expected to veto the legislation if it does pass.
“The governor does not support S.B. 333,” Wolf spokesman Jeffrey Sheridan told Bloomberg BNA April 24. “Governor Wolf supports paid sick leave for workers, and local municipalities' ability to pass ordinances for leave that they believe will help families and the economy.”
To contact the reporter on this story: Leslie A. Pappas in Philadelphia at email@example.com
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