Paid Sick Leave Quarterly: 4Q 2017

As we wrap up the last quarter of 2017, the vast and complex patchwork of PSL laws consists of more than 40 laws: 8 state laws, the District of Columbia, 2 county laws and about 30 municipal laws. My reports on the first three quarters of 2017 are here, here and here.  My 2017 fourth quarter PSL report is below.

In January, i will post a summary of 2017 PSL developments. In that post, I will also name the winner of the “2017 Paid Sick Leave Patchwork Award” to recognize the jurisdiction that has made the greatest contribution to the PSL patchwork in 2017. I suspect that most who follow this blog could guess the winner quite easily.

Paid Sick Leave Laws Effective This Quarter

Paid Sick Leave Laws Effective After This Quarter

  • New York City (amendment): New York City amended its Earned Sick Time Act to allow employees to use accrued time for reasons related to domestic violence. The law, now called the New York City Safe and Sick Time Law, is effective  May 7, 2018.
  • Rhode Island Healthy and Safe Families and Workplace Act (July 1, 2018).
  • Seattle, WA (amendment). On December 15, Seattle amended its Paid Sick and Safe Time Ordinance “to incorporate the more generous provisions of voter-passed, Washington Initiative 1433 establishing statewide paid sick leave.” Generally, where the state law is more generous than the Seattle ordinance, this amendment raises the ordinance standards to that state level. Among the changes, the Seattle ordinance now applies to employers with just one employee (it previously applied to employers with at least four employees); has expanded “family member” definitions; eliminates caps on the use of accrued time; and reduces the waiting period for use of accrued time from 180 to 90 days.  It is effective 30 days after enactment.
  • Tacoma, WA (amendment). Tacoma amended its PSL law to align it more closely with the Washington PSL law. The amendment is effective January 1, 2018.
  • Washington Law Establishing Fair Labor Standards by Requiring Employers to Provide Paid Sick Leave to Employees (January 1, 2018).

Louvre Sculpture

Paid Sick Leave Bills Introduced This Quarter

Maryland: Governor Hogan recently proposed the Paid Leave Compromise Act, which would gradually reduce the size of an employer required to provide paid leave from fifty employees in 2018, to forty employees in 2019, to 25 employees in 2020 and subsequent years.  It would allow employees to use accrued time for any reason. The compromise bill is an attempt to avoid a January PSL showdown over the Governor’s veto last spring of a PSL bill passed by the General Assembly.

Albuquerque: Just ten weeks after voters narrowly rejected the Healthy Workforce Ordinance, on December 18, the Albuquerque Sick Leave Ordinance was introduced in the City Council. It has the typical PSL-ordinance architecture. The Ordinance would require employers with at least 50 employees to allow employees to accrue one hour of paid sick leave for every 40 hours worked, with a maximum accrual and use of forty hours annually, and carryover of up to forty hours of unused time.

Paid Sick Leave Preemption Developments

Alabama: Marnika Lewis v.  State of Alabama et al. (11th Cir) (Case No.17-11009). In February 2017, a federal court judge rejected challenges to the Alabama Uniform Minimum Wage and Right-to-Work Act, which bars political subdivisions from requiring employers to provide employees with wages or “employment benefits” not required by federal or state law.  An“employment benefit” includes paid and unpaid leave. The plaintiffs have appealed to the U.S. Court of Appeals for the Eleventh Circuit. Oral argument on the appeal is likely to be held in the first quarter of 2018.

Rhode Island: The Healthy and Safe Families and Workplace Act, passed in September, has a “uniformity” clause which prohibits municipalities from requiring employers to provide more paid sick and safe time than is required by this law.

Federal: The Workflex in the 21st Century Act, introduced in the House of Representatives in November, would expand ERISA preemption to override the patchwork of paid sick leave laws for an employer which voluntarily adopts a written qualified flexible workplace arrangement” (QWFA) that provides the required minimum amount of “compensable leave” and offers employees at least one of the listed “workflex options.” The bill has been referred to U.S. House Committee on Education and the Workforce. A subcommittee held a hearing on paid leave policies in December.

Paid Sick Leave Litigation

 Challenges to state PSL laws

Massachusetts: A railroad had argued that the Massachusetts Earned Sick Time Law (MESTL) was preempted by the Railroad Unemployment Insurance Act (RUIA), the Railway Labor Act and ERISA with regard to interstate rail carriers. The First Circuit held in June that the section of the MESTL dealing with benefits for an employee’s own medical condition was preempted by the RUIA. The court remanded the case to have the district court decide whether any other sections are preempted by the RUIA or the Railway Labor Act or ERISA and whether any sections of the MESTL survive as applied to interstate rail carriers. CSX Transportation, Inc. v. Healey  (1st Cir.  2017).

Challenges to local PSL laws 

Pittsburgh, PA: The Supreme Court of Pennsylvania has agreed to hear an appeal concerning the City of Pittsburgh’s authority to enact the Sick Days Act, which it enacted in August 2015. In May, an appellate court affirmed a lower court’s decision that the city did not have the authority to enact it and invalidated the Act.  The lone dissenting judge said that Pittsburgh had the right to protect the health and safety of its residents and that the Sick Days Act  was an exercise of that right. The appeal will focus on an interpretation of the Home Rule Charter Law, which limits the City’s authority to regulate business “except as expressly provided by statutes….”

Other Paid Sick Leave Developments To Watch

Austin, TX: The Austin City Council voted in September to consider requiring private employers to offer employees paid sick leave.  Austin has held three meetings to obtain the views of the community.  The city staff will submit a recommendation to the City Council for its consideration.

Duluth, MN: The Duluth Safe and Sick Time Task Force presented its report to the City Council on November 20. The majority recommendation has the typical PSL-ordinance architecture, though the task force lacked a consensus on an annual cap or carryover provisions. A second recommendation would require employers to have a written policy publicly available providing at least three days of PSL annually for full-time employees, a pro-rated amount for part-time employees.

Michigan: The state Board of State Canvassers has approved a petition to allow proponents of the Earned Sick Time Act to collect signatures to try to have the Act on the ballot in November 2018. Proponents have until early Spring 2018 to collect enough signatures.

Portland, ME. The mayor has presented his  proposed Earned Paid Sick Time for Workers Ordinance to the City Council. It has been referred to the Health and Human Services Committee “for further research and deliberation.” The ordinance has the typical PSL-architecture: employees working in Portland would accrue one hour of sick time for every 30 hours worked, to a maximum of 6 days annually. If enacted, the Ordinance would be effective July 1, 2018.

Spokane:  In response to voters having approved a state-wide PSL bill in November 2016, Spokane amended its PSL law to “sunset,” i.e., have no effect, upon the effective date of the state law, i.e., January 1, 2018.