United States: New Year's Resolution: Developing A Universal Paid Sick & Safe Time Policy

Last Updated: January 7 2019
Article by Adam J. Fiss, John S. Hong and Sebastian Chilco

Developing a paid sick and safe time (PSST) policy that complies universally – or at the very least with two laws – has become increasingly challenging. Without fail, and despite some overlap, each new law seems to contain one provision that could interfere with the goal of establishing uniform practices.

To test that theory, we reviewed the basic aspects of PSST laws (i.e., an employer's available methods for complying, types of family members for whom leave may be used, rules about accrual, etc.) across jurisdictions to identify particular pain points. Based on that survey, we highlight below one provision from each jurisdiction with a generally-applicable PSST law (and some industry-specific and federal government contractor laws) that demonstrates why developing a multi-city, -state, or nationwide PSST policy may be a hard new year's resolution for employers to keep, depending on where they operate and the method(s) of compliance chosen.

Using Existing Policies: In Berkeley, California, benefits that are not payable from an employer's general assets cannot be used to satisfy an employer's paid leave obligations. In Tacoma, Washington, if an employer uses vacation or PTO to comply with the law, the entire leave bank, not just the amount of leave required by the law, is subject to the law's protections.

Unionized Workforces: The law applies to employees covered by a collective bargaining agreement (CBA) in San Diego, California. In Connecticut, the law applies once a CBA entered into before January 1, 2012 expires or is renegotiated; similarly, in Maryland, outside the construction industry, the law applies upon the expiration of a CBA entered into before June 1, 2017.

Family Members: In Oakland, California, shortly after being hired, and annually each year after, unmarried employees must be allowed to designate a person for whom they can use leave. In the District of Columbia, a covered family member includes a person with whom the employee shares or has shared, for at least the preceding 12 months, a mutual residence and with whom the employee maintains a committed relationship. In Westchester County, New York, a covered family member includes a person related by blood or affinity.

Accrual: In California, if employees accrue leave (instead of leave being front loaded), hard annual accrual caps cannot be used. Rather, the law requires a maximum bank, i.e., employees accrue leave until their bank reaches a certain level, at which point leave temporarily stops accruing until they use leave, at which point accrual resumes. In Rhode Island, employees must accrue leave when they are on paid leave and during holidays. As originally enacted, Michigan did not set an annual or overall cap on how much leave an employee could accrue. Although recent amendments set accrual caps, a never-before-seen provision has been included that cannot be used by employers elsewhere: limiting accrual to no more than one hour per week, i.e., even if an employee worked sufficient hours to accrue more hours, only one would be accrued.

Carry-Over: In Chicago and Cook County, Illinois, different carry-over requirements apply if an employer is covered by the federal Family and Medical Leave Act. In Philadelphia, Pennsylvania, the law does not set a cap on how many leave hours can be carried over. In SeaTac, Washington, accrued but unused leave must be cashed out.1

Front Loading: In San Francisco, California, employers cannot provide a pure frontload, i.e., they are not relieved of the obligation to track accrual and carry-over unused leave at year-end if they provide a certain amount of leave each year. In Los Angeles, California, front loading is only partially permitted; employers can front load 48 hours each year, but at year-end must carry-over up to 48 unused hours and in the next year front load an additional 48 hours, though they can "chop off" any leave hours that exceed 72 hours. In Santa Monica, California, employers with 26 or more employees must front load 72 hours annually. In Minneapolis and Saint Paul, Minnesota, during the second and subsequent years of coverage, employers must front load 80 hours annually.

Waiting Periods: Under ordinances adopted (but not yet in effect)2 in Austin and San Antonio, Texas, employers cannot institute waiting periods to use leave for at-will employees.

Covered Uses: Employees can use leave: to care for a service dog (Emeryville, California); for baby bonding (Montgomery County, Maryland); if a covered relation's school or place of care is closed due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected closure (Duluth, Minnesota); to attend a child's school-related conference, meeting, function or other event requested or required by school officials (New Jersey); or to deal with the death of a family member (Oregon).

Using Leave: In Massachusetts, employees must be able to use leave when they are transferred out of state. In Seattle, Washington, if employers track increments of work in less than hourly increments, e.g., 5-minute blocks, employees must be able to use leave in that increment. For federal government contractors covered by Executive Order 13706, a written or electronic communication must explain why a request to use leave was denied.

Payment: In Vermont, payment for leave used cannot be delayed while an employer waits for an employee to provide documentation supporting an absence.

Paystubs: In Arizona, paystubs must show the amount of pay an employee received when taking leave. In Washington State, if an employer limits how much leave can be carried over from one year to the next, the first paystub issued in the subsequent year must indicate the amount of leave that was not carried over.

Mandatory Policies: In New York City, New York, the law requires numerous practices to be expressly discussed in a written policy. Similarly, if employers want to implement various optional provisions at their discretion, adoption of those practices must be documented in a written policy to comply with the law.

This article focuses exclusively on challenges of universal compliance with PSST laws. However, employers must remember that their PSST policies and practices cannot be developed in a vacuum. There are numerous laws that overlap with PSST with which employers may be required to comply and consider when implementing policies and practices, including, but not limited to, family and medical leave (unpaid and/or paid), domestic violence leave, kin care, fair scheduling, and disability accommodation. Multi-jurisdictional employers should stay tuned for further developments throughout 2019 on this always-evolving topic and are encouraged to consult with counsel as needed to tackle these complexities.

Footnote

1 However, the state law requires a specific amount of leave to be carried over, so employers must ensure their end-of-year practices comply with both laws, if applicable.

2 It is likely neither will take effect because state legislators are moving towards preempting local PSST laws when the next legislative session begins in January 2019. Moreover, the Austin ordinance is currently the subject of litigation. See, e.g., Melissa Ackie, Austin, Texas Earned Sick Time Ordinance on Life Support, Littler ASAP (Nov. 19, 2018).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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