Lawmakers are feeling better and better about paid sick leave. Statutes requiring employers to provide paid time off to employees who are ill, injured or in need of medical care (or have family members who are) have cropped up in several states over the past few years, and similar local ordinances are being adopted in counties and cities nationwide. Further developments can be anticipated this legislative season, with paid sick leave bills currently pending in multiple states.
“More than a third of today’s workers—and that’s 41,000,000 private sector employees across the U.S.—are not eligible for even a single paid sick day. So this is certainly an area that is still changing and evolving,” says Cheryl D. Orr, an elected managing partner in Drinker Biddle’s San Francisco office. In a recent Bloomberg BNA webinar, Orr outlined newly-enacted paid sick leave laws and, along with Nettime Solutions CEO Bahan Sadegh, highlighted best practices for ensuring compliance.
Since Connecticut passed the first of these laws in 2011, several states now require employers to provide paid sick leave to their employees. California, Massachusetts, Oregon and Vermont, as well as Washington, D.C., have each enacted paid sick leave laws, and voters in Arizona and Washington approved ballot initiatives for paid sick leave this past November. These laws vary greatly between jurisdictions when it comes to factors such as coverage, leave accrual, carryover rules, certification, notice and recordkeeping requirements, and the inclusion of “safe leave” provisions for time off due to issues of domestic violence, sexual assault or stalking.
“While there are many similarities among these paid sick leave laws,” Orr says, the numerous differences between them make it critical for employers to familiarize themselves with each individual law. Arizona’s new law, for example, applies to employers who have at least 15 employees company-wide— meaning, as Orr explained, that employers with 15 or more employees will need to maintain compliance with that law even if only one of those employees works in Arizona. Oregon’s paid sick leave law, on the other hand, applies to employers with at least 10 employees working within the state.
Paid sick leave laws are likely to be enacted in more states this year. Maryland currently has a bill pending which would require employers of 15 or more employees to provide up to seven days of paid sick and safe leave. New York also has introduced a bill pursuant to which employers with 10 or more employees would need to provide up to 10 days of paid sick leave, and employers with fewer than 10 employees would need to provide up to five days.
Over 30 municipalities and counties across the U.S. currently require employers to grant paid sick leave. These local laws can create confusion for employers who have employees working in multiple cities, or in a city subject to both state and local paid sick leave requirements. “When you have offices or company locations in various jurisdictions,” Orr says, “you need to look at the interplay of the municipality, the county and the state laws.” Employers that are subject to different requirements under state and local laws should follow the stricter standard or “the law most beneficial to the employee,” she says.
Some state legislatures are looking to curb this trend by enacting laws that prohibit localities from passing their own paid sick leave requirements. Proponents of these laws claim that they help “create a more uniform regulatory environment,” Orr says. Such laws are currently on the books in Alabama and Michigan, both of which have no state-level paid sick leave requirement, and also in Oregon, which does. Kentucky and Ohio enacted laws in the past two months prohibiting localities from requiring employers to provide “fringe benefits” to their employees. Similar legislation is pending in Minnesota, where St. Paul and Minneapolis each enacted their own leave ordinances last year, both of which would be preempted under the proposed legislation.
Orr also touched upon new federal paid sick leave regulations. Effective January 1 of this year, covered employers who work with or as federal contractors are required to provide their employees with up to seven days of paid sick leave per year. The regulations were issued pursuant to Executive Order 13706, signed by President Barack Obama in September 2015, which directed the Secretary of Labor to issue regulations implementing its requirements. The Department of Labor’s Final Rule was published September 2016. An estimated 1.15 million employees would be entitled to paid sick leave under the new regulations.
Although the fate of the regulations is uncertain under the Trump administration, Orr says that, “unless and until something changes,” compliance with them is advisable because they are currently in effect. Further, she says, it is unclear whether the executive order underlying them will, in fact, be rescinded anytime soon. The president announced a plan for paid maternity leave while on the campaign trail, Orr notes, which would “largely be at odds” with rescinding the executive order, and paid sick leave is not included in his plan for the first 100 days of his term.
Employers finding themselves ill at the thought of complying with these highly varied and potentially-conflicting laws should consider reviewing their leave policies and utilizing data management systems to help them enforce those policies. Bahan Sadegh discussed the benefits of using automated leave tracking systems to manage both individual employees’ requests for time off as well as time-sensitive aspects of certain leave laws. Accrual limits change annually for some jurisdictions and, as Sadegh describes, employers can utilize “effective dating” in these tracking systems, which will automatically adjust for new accrual limits on the date that they take effect.
Orr recommends that employers review their sick leave policies frequently, particularly those with employees in more than one locality. “You need to know the jurisdictions where your company has employees and you need to constantly keep an eye out,” Orr says, to stay apprised of these rapidly-changing requirements.
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