Much has been written about employers requiring their employees to receive the COVID-19 vaccination. The EEOC’s December 16, 2020 Guidance gives employers a green light from an ADA perspective to implement such a program so long as the employer fulfills its accommodation obligations under Title VII (religion) and the ADA (disability). The EEOC’s Guidance does not deal with the myriad of other potential legal claims to challenge a mandatory program.
Very little has been written about the additional challenges of implementing such a program in a unionized workplace. An article I wrote on that topic was published last week by Wolters Kluwer, a leading global provider of information, software, and services for professionals. Here is the article: “On the Labor Front: Requiring employees in a unionized workplace to be vaccinated”.
Meanwhile, during this early stage of the vaccine’s rollout, employers seem more focused on educating, encouraging and cajoling employees to be vaccinated. If most employees elect to get vaccinated, we may never get to the issue of requiring employees to be vaccinated as a condition of employment. However, the fewer the number of employees who elect to be vaccinated, the greater the likelihood that employers consider a mandatory program, especially in industries where employees have regular contact with the public. As discussed in my article, for employers whose employees are represented by a union, the EEOC’s Guidance is only the first step in moving toward a mandatory program. Dealing with its labor contract and the union may present additional legal and practical challenges.
In 2019, Connecticut passed a paid leave law and amended its family and medical leave act. The law created the Paid Family and Medical Leave Authority, a quasi-government entity, to administer the funding and processing of claims. (Full disclosure: I am a member of the Board of Directors of this Authority). The benefit is funded through employee contributions collected by employers through a payroll deduction and forwarded to the Family and Medical Leave Trust Fund.
Employees must begin withholding employee contributions beginning January 1, 2021. Employees may receive benefits effective January 1, 2022. The state FMLA amendments become effective on January 1, 2022 as well. For information about the law’s requirements, including employee and employer responsibilities, visit and subscribe to the Authority’s website: ctpaidleave.org.
I have posted often about union-represented employees being shortchanged by paid leave laws. See here, here and here. This has always baffled me since unions have been staunch advocates of such laws. For my most recent On the Labor Front article, I analyzed the extent to which some paid leave laws shortchange union-represented employees and the legislative tactics used to achieve that result.
I also sought, without success, to identify the reason union-represented employees come up short in the legislative drafting of these laws. To me, it remains “a riddle wrapped in a mystery inside an enigma,” to borrow a phrase from Winston Churchill.
In addition to focusing on leave management issues for the past few decades, I have also negotiated many collective bargaining agreements and represented employers in other “traditional labor law” issues. Earlier this summer, legal publisher Wolters Kluwer, a global provider of professional information, software solutions and services, asked me to write a monthly article about a labor issue. “On the Labor Front” is the name of the column. Here is the link to my first article, which discusses a first in our country’s history: campaign employees in five presidential campaigns have chosen to be represented by a union.
As unionized employers know, dealing with leave management issues within the confines of a collective bargaining agreement presents unique challenges. The intersection of leave management laws and collective bargaining agreements has been of great interest to me and will be addressed in upcoming On the Labor Front articles.
I hope you enjoy the article. As always, I welcome your comments.
Bernalillo County Commissioners (NM) last night approved by a narrow margin an “any reason” leave law. The initial proposal was a paid sick leave bill but in June, after Maine and Nevada passed “any reason” leave laws, the Commissioners decided to consider a broadened “any reason” proposal.
The Employee Wellness Act applies to employers in the unincorporated limits of the County, which excludes the City of Albuquerque. The ordinance considered last night stated that it is effective July 1, 2020 though an ABQ Journal article noted that the ordinance is effective July 1, 2020. We will need to see the effective date in the final version of the amended ordinance when it becomes available.
The County ordinance has the typical PSL architecture less the list of approved uses. Employees accrue PSL at the rate of one hour for every 32 hours worked to a maximum of 56 hours annually. At the meeting last night, the Commissioners agreed to phase into that 56 hour cap, according to the ABQ Journal. The maximum accrual in the first year of implementation is 24 hours; 40 hours in the second year; and 56 hours in the third year.
With Maine, Nevada and now Bernalillo County having passed “any reason” leave laws, we may be seeing the end of PSL laws as we have known them and are evolving to what I will call PSL 2.0 laws, which are structurally similar to a PSL law less the limitations on the use of accrued time.
One month ago, writing about the recently-enacted Maine leave law, I urged readers to watch for “bills to amend PSL laws to delete the often lengthy and specific ‘allowed uses’ provision and replace it with two words: any reason.” The Bernalillo County (NM) Board of Commissioners last night took the first step down that road. The Board voted to table the proposed sick leave ordinance to consider an amendment that would delete the limits on the use of accrued time, transforming the PSL law to an “any reason” ordinance.
With Maine and Nevada recently having passed “leave for any reason” laws and the Bernalillo County Commissioners action last night, we may be seeing the end of PSL laws as we have known them and are evolving to what I will call PSL 2.0 laws, which are structurally similar to a PSL law less the limitations on the use of accrued time.
The Portland (ME) City Council tonight rejected a PSL bill by a 5-4 margin. The issue has been pending in the legislature since the Mayor of Portland introduced the initial bill in 2017. A statewide PSL bill is pending in the Maine legislature.
The Minneapolis Sick and Safe Time Ordinance can be enforced against businesses not physically located in the city but who have employees who work at least eight (80) hours in a year within the geographic boundaries of the city, according to a state appellate court decision last week. The court also held that the Minneapolis ordinance was not preempted by a state law allowing employees to use their sick leave benefits to care for ill or injured family members and for safe time.
A cadre of business interests brought the legal challenge to the Minneapolis ordinance in January 2017, months before the ordinance went into effect on July 1, 2017. The initial court decisions enjoined the city from enforcing its PSL law against employers who did not have a physical presence in the city. To address this issue, in March 2018, Minneapolis amended its ordinance by narrowing its application to such “extraterritorial” employers. The amendments added that employees accrue PSL time for hours worked “within the geographic boundaries of the city” and could use that time only when scheduled to work “within the geographic boundaries of the city.” These amendments, the city argued, salvaged the Ordinance’s extraterritorial provisions.
Last week, the court of appeals agreed, reversing a state district court decision a year ago which had rejected the Ordinances’ application to businesses outside the city limits.
Alabama: Marnika Lewis v. State of Alabama et al. (11th Cir) (Case No.17-11009)(11th Cir. July 25, 2018). The Eleventh Circuit Court of Appeals has decided to hear the challenge to Alabama’s minimum wage and employment benefits preemption law en banc, meaning that all of the Court’s judges will hear the case.The Alabama Uniform Minimum Wage and Right-to-Work Act bars municipalities from requiring employers to provide employees wages or “employment benefits,” including leave, unless required by federal or state law. It was passed the day after Birmingham increased the minimum wage within the city. The plaintiffs brought various race-based challenges to the Act, all of which were rejected by a federal district court last year. Last July, a three-judge panel of the Eleventh Circuit affirmed the dismissal of all claims except the “equal protection” constitutional claim, holding that the plaintiffs have plausibly alleged both that the Act “burdens black citizens more than white ones” and that it was enacted with a discriminatory purpose.
Texas: Two bills would bar political subdivisions from enacting various employment ordinances, including PSL laws. The bills would also void existing PSL ordinances, such as those in Austin and San Antonio. The Texas Senate passed those two bills on April 11, 2019.
Paid Sick Leave Litigation
Challenges to state PSL laws
Massachusetts and Washington: The Massachusetts Earned Sick Time Law (MESTL) and Washington State Paid Sick Leave Act (WPSL) as applied to flight crew are unconstitutional and preempted by the federal Airline Deregulation Act (ADA), according to complaints filed by the Air Transport Association of America, an association of airline carriers. The plaintiff claims these state laws violate the dormant Commerce Clause–the implicit restriction on a state or local government’s ability to unreasonably burden interstate commerce–and the Fourteenth Amendment of the Constitution. The plaintiff also alleges that the ADA preempts the state PSL laws with regard to both flight crew and ground crew because they relate to a “price, route or service of an air carrier.” In the Massachusetts case, the plaintiff filed a motion for summary judgment on November 30, 2018, which remains pending. Air Transport Association of America, d/b/a Airlines For America v. Maura Healey in her capacity as Attorney General of the Commonwealth of Massachusetts (D.MA)(complaint filed 04/04/18); Air Transport Association of America, d/b/a Airlines For America v. The Washington Dep’t of Labor and Industries et al (W.D. WA)(complaint filed 02/06/18).
Michigan: The Michigan Supreme Court will wade into the clash involving the constitutionality of the state’s Paid Medical Leave Act, at least to decide whether to consider the substance of that clash. In response to requests by both legislative chambers for an advisory opinion on the legality of the recently enacted state PSL law, the court scheduled a hearing on July 17, 2019. The first of three questions listed in the Court’s Order is whether it should exercise its discretion and issue the requested advisory opinion.
Challenges to local PSL laws
Pittsburgh, PA: The Supreme Court of Pennsylvania will decide whether Pittsburgh had authority to enact the Sick Days Act which it adopted three years ago. Last year, an appellate court affirmed a lower court decision that the City did not have the authority to enact it and invalidated the law. 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….” Oral argument in the Supreme Court occurred on October 23, 2018. Pennsylvania Restaurant and Lodging Ass’n v. City of Pittsburgh and Service Employees Int’l Union, Local 32 BJ. (Pa. Supreme Court, 57 WAP 2017).
Austin, TX: The Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA), the Texas Court of Appeals, Third District, ruled in November. The court’s ruling focused largely on its determination that the sick days required by the ordinance were a “wage.” The Austin PSL ordinance was to be effective on October 1, 2018 but its implementation had been enjoined pending the outcome of the litigation. The City of Austin, reportedly, intends to appeal to the Texas Supreme Court. Texas Ass’n of Business et al v City of Austin, Texas et al (TX Ct of Appeals, Third District, November 16, 2018).
Other Paid Sick Leave Developments To Watch
Portland, ME may be the next municipality to vote on a PSL ordinance. The Mayor of Portland introduced a PSL bill in 2017. The City Council will likely vote on the PSL bill on May 6, 2019.
Albany County, NY: The County’s Paid Sick Leave Act was introduced in March 2018, was referred to the Legislature’s Law Committee, and remains there. The Law Committee’s next meeting is on April 25, 2019.
The Michigan Supreme Court will wade into the clash involving the constitutionality of the state’s Paid Medical Leave Act, at least to decide whether to consider the substance of that clash. In response to requests by both legislative chambers for an advisory opinion on the legality of the recently enacted state PSL law, the court scheduled a hearing on July 17, 2019. The first of three questions listed in the Court’s Order is whether it should exercise its discretion and issue the requested advisory opinion.In Michigan, a legislative chamber or the governor may ask the Supreme Court to issue an advisory opinion on “important questions of law upon solemn occasions as to the constitutionality of legislation….”
The other two questions for which the Court solicited briefs concern the process-used to enact the PSL. PSL proponents had collected enough signatures to have voters decide in November 2018 whether to enact a PSL initiative. The Michigan Constitution gives the legislature the option to enact such an initiative, negating the need for a vote on it. Both legislative chambers, both with GOP majorities, had concerns about the substance of the PSL bill. They decided to enact the voter initiative and then amend it. This strategy was adopted because amending a statute enacted by the legislature requires a majority vote in each legislative chamber while amending a statute enacted by a voter initiative requires a three-fourths vote of each chamber. The urgency to implement this strategy increased in November when voters elected a Democratic governor who would take office in January and would likely veto the effort to amend the PSL law.
Last Fall, the legislature enacted the initiative and a few months later amended it. In December, lame duck GOP Governor Rick Snyder signed the amended bill.
The Supreme Court has asked the parties to brief whether the legislature may “enact an initiative petition into law and then amend that law during the same legislative session” and whether the PSL and minimum wage laws were enacted in accordance with the constitutional provision concerning voter initiatives.
Paid Sick Leave @ Work 