Paid Sick Leave

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By Joshua D. Seidman, Tracy M. Billows, Ann Marie Zaletel, William P. Perkins, and Ryan B. Schneider

Seyfarth Synopsis:  This blog presents Seyfarth Shaw LLP’s Infographic tracking the spread of paid sick leave and anti-local sick leave laws around the country. The Infographic is divided into four distinct time periods to highlight the geographic and historic evolution of these laws.

Introduction

Over the last decade, dozens of states and cities have infected the nation with a patchwork of paid sick leave laws and ordinances. The paid sick leave epidemic has created compliance challenges for countless employers, whether their operations are nationwide, multi-state, or limited to a single state. As the paid sick leave epidemic has grown, so too has the number of states immunizing their boundaries from local paid sick leave ordinances.

The current spread of paid sick leave and anti-local sick leave laws takes several forms. In some states, only local paid sick leave ordinances exist. In others, there are only state paid sick leave laws in place. Some statewide paid sick leave laws strip localities of the ability to regulate paid sick leave. Other statewide sick leave laws have declined to enforce the anti-local vaccine, thereby allowing state and local paid sick leave mandates to co-exist. Finally, some states have enacted anti-local sick leave legislation without any statewide paid sick leave mandate in place.

The presence of a local paid sick leave ordinance or anti-local paid sick leave law does not prevent a state from passing a paid sick leave law in the future. Additionally, regardless of the presence or absence of paid sick leave mandates or anti-local paid sick leave laws, new strands of the paid sick leave virus, as well as new vaccines, have emerged over the years due to legislative and executive shifts across the nation. Needless to say, the paid sick leave landscape is constantly evolving. These maps illustrate the spread of the paid sick leave epidemic and anti-local paid sick leave vaccine over the years.

Read on for specific points about the development of paid sick leave laws during each of the four relevant time periods.

I.  Pre-2014

Note 1: Local paid sick leave mandates present in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Seattle, WA; and (4) Washington, D.C. Outside of these locations, and the state of Connecticut, paid sick leave was an area left to employer discretion.

Note 2: A majority of the nine state anti-local paid sick leave laws in effect prior to 2014 preempted localities from regulating a wide range of employment-related matters, such “employment benefits” or a related term (which generally includes time off benefits and leave), as opposed to expressly preempting localities from regulating sick leave.

Note 3: A paid sick leave ordinance was enacted in Milwaukee, WI in 2008. However, due to judicial and legislative delays, the ordinance had not yet gone into effect when Wisconsin passed its statewide anti-local paid sick leave law in 2011.

II. 2014-2015

Note 1: In a matter of two years, the number of state and local paid sick leave laws around the country that were in effect or scheduled to go into effect increased from five to 23. The sick leave epidemic particularly impacted jurisdictions in the Northeast and Mid-Atlantic, and on the West Coast. To combat the epidemic, state anti-local paid sick leave laws emerged in four additional states.

Note 2: Local paid sick leave mandates present in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Oakland, CA; (4) Emeryville, CA; (5) Los Angeles, CA (covers certain hotel employers only); (6) Portland, OR; (7) Philadelphia, PA; (8) Jersey City, NJ; (9) Newark, NJ; (10) Passaic, NJ; (11) East Orange, NJ; (12) Paterson, NJ; (13) Irvington, NJ; (14) Montclair, NJ; (15) Trenton, NJ; (16) Bloomfield, NJ; (17) New York City, NY; (18) Seattle, WA; (19) SeaTac, WA (covers certain transportation and hospitality employers only); and (20) Washington, D.C.

Note 3: When California’s statewide paid sick leave law went into effect, it became the first state in which both state and local paid sick leave mandates were imposed.

Note 4: During this time period, New Jersey municipalities added nine local paid sick leave mandates and became home to the greatest number of municipal sick leave ordinances of any state in country.  New Jersey would retain this title until October 29, 2018.

Note 5: Pittsburgh, PA also passed a paid sick leave ordinance during this timeframe. It was scheduled to go into effect in early January 2016. However, it has not taken effect due to ongoing litigation regarding whether Pittsburgh could pass such an ordinance. The Pennsylvania Supreme Court heard oral arguments on the matter in October 2018.

III. 2016-2017

Note 1: During this 2016-17 window, the paid sick leave epidemic nearly doubled, increasing the number of laws with state or local mandates either in effect or scheduled to go into effect from 23 to 40. Notably, not only did the epidemic continue to intensify in the Northeast, Mid-Atlantic, and on the West Coast, but it also began spreading inward to Arizona and localities in Illinois and Minnesota. To combat the epidemic, state anti-local paid sick leave laws emerged in 7 additional states.

Note 2: Local paid sick leave mandates present in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Oakland, CA; (4) Emeryville, CA; (5) Los Angeles, CA (two ordinances – one covers certain hotel employers only and the other generally applies to private employers); (6) San Diego, CA; (7) Santa Monica, CA; (8) Berkeley, CA; (9) Chicago, IL; (10) Cook County, IL; (11) Montgomery County, MD; (12) Minneapolis, MN; (13) Saint Paul, MN; (14) Philadelphia, PA; (15) Jersey City, NJ; (16) Newark, NJ; (17) Passaic, NJ; (18) East Orange, NJ; (19) Paterson, NJ; (20) Irvington, NJ; (21) Montclair, NJ; (22) Trenton, NJ; (23) Bloomfield, NJ; (24) New Brunswick, NJ; (25) Elizabeth, NJ; (26) Plainfield, NJ; (27) Morristown, NJ; (28) New York City, NY; (29) Seattle, WA; (30) SeaTac, WA (covers certain transportation and hospitality employers only); (31) Spokane, WA; (32) Tacoma, WA; and (33) Washington, D.C.

Note 3: Oregon’s statewide paid sick leave law came with an anti-local preemption vaccine, which eliminated the local strain that was in effect in Portland and had been enacted in Eugene.

Note 4: In 2013, the Arizona legislature enacted a preemption law, preempting a wide range of employment matters, including paid sick leave. The 2017 Arizona statewide paid sick leave law, however, expressly permits localities to enact more generous local paid sick leave mandates. See Ariz. Rev. Stat. §§ 23-378, 23-379(b). Given this language and questions surrounding the propriety of the preemption law in a more general context, it is very likely that localities may attempt to regulate paid sick leave in Arizona. See generally United Food & Com. Workers Local 99 v. State, No. CV 2016-092409, 2017 WL 8776461 (Ariz. Super. Ct. Aug. 30, 2017).

Note 5: The North Carolina law prohibiting local regulation of private employment practices (which likely includes sick leave) is set to expire on January 1, 2020.

Note 6: Ohio’s paid sick leave preemption statute (Ohio Rev. Code Ann. § 4113.85) was enacted in 2016 via S.B. 331, a bill regulating a broad range of topics beyond preemption or employment law, and went into effect in March 2017. Many municipalities have filed lawsuits due to S.B. 331’s broad sweep. At least two county courts in Ohio have found that the bill violates the Ohio Constitution’s “one subject” clause and declared all provisions of S.B. 331 unrelated to pet store purchase supply regulation, the bill’s original purpose, unconstitutional. Regardless, localities in Ohio are likely preempted from passing paid sick leave legislation because (1) Ohio Rev. Code Ann. § 4113.85 is in effect, (2) at least one intermediate appellate court case found that because the plaintiffs did not challenge paid sick leave preemption, but rather another provision, the issue of paid sick leave preemption was moot, and (3) the county court decisions do not bind other courts.

Note 7: On January 1, 2017, the federal contractor paid sick leave requirements, as set forth in Executive Order 13706 and the United States Department of Labor’s corresponding Final Rule, went into effect, thereby providing paid sick leave benefits to many employees of certain federal contractors.

IV. 2018

Note 1: 2018 has seen the paid sick leave epidemic spread to only three additional localities. However, the epidemic has continued to evolve and expand as five additional statewide sick leave mandates either went into effect or were enacted this year.  The total number of paid sick leave mandates in effect or scheduled to go into effect at the time of this publication is 35 (this figure excludes Pittsburgh, PA and Austin, TX in light of ongoing lawsuits challenging the cities’ respective paid sick leave ordinances).

Note 2: Local paid sick leave mandates either in effect or scheduled to go into effect in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Oakland, CA; (4) Emeryville, CA; (5) Los Angeles, CA (two ordinances – one covers certain hotel employers only and the other generally applies to private employers); (6) San Diego, CA; (7) Santa Monica, CA; (8) Berkeley, CA; (9) Chicago, IL; (10) Cook County, IL; (11) Montgomery County, MD; (12) Minneapolis, MN; (13) Saint Paul, MN; (14) Duluth, MN; (15) New York City, NY; (16) Westchester County, NY; (17) Philadelphia, PA; (18) San Antonio, TX; (19) Seattle, WA; (20) SeaTac, WA (covers certain transportation and hospitality employers only); (21) Tacoma, WA; and (22) Washington, D.C.

Note 3: March 30, 2019 is the expected effective date of the Westchester County, NY ordinance because this date is 180 days from the date the paid sick leave bill was “adopted” according to the language of the ordinance and corresponding certification page from the Clerk of the Westchester County Board of Legislatures. However, there are multiple interpretations of the effective date that could result in a slightly different effective date as we near late-March/early-April 2019.

Note 4: The Duluth, MN paid sick leave ordinance is scheduled to go into effect on January 1, 2020.

Note 5: The Texas update is based on the following: The cities of Austin and San Antonio both passed paid sick leave ordinances in 2018.  The Austin ordinance was originally scheduled to go into effect on October 1, 2018, while the San Antonio ordinance is scheduled to go into effect for most employers on August 1, 2019. The Austin ordinance is currently involved in a lawsuit that found the ordinance to be unconstitutional. In addition, the Texas legislature has introduced a bill that would prohibit all municipal paid sick leave ordinances in the state. However, the lawsuit does not impact San Antonio and the preemption bill will not be passed, if at all, until 2019. As a result, at the time of this publication, at least San Antonio’s paid sick leave ordinance is still “scheduled to go into effect” in August 2019.

Note 6: Like the California statewide paid sick leave law, the Washington statewide paid sick leave law, which went into effect on January 1, 2018, does not preempt municipalities within the state from passing more generous paid sick leave mandates.

Note 7: The Spokane, WA paid sick leave ordinance’s “sunset” provision took effect on January 1, 2018, and thus the Spokane ordinance is no longer in effect.

Note 8: Maryland’s statewide paid sick leave law preempted its political subdivisions from passing paid sick leave ordinances on or after January 1, 2017. As a result, Montgomery County’s paid sick leave ordinance, which went into effect in 2016, is still in effect and co-exists with the statewide paid sick leave law.

Note 9: When New Jersey’s statewide paid sick leave mandate went into effect on October 29, 2018, the law preempted the state’s 13 existing local paid sick leave ordinances and all future local New Jersey paid sick leave ordinances from being enacted.

Note 10: Michigan’s statewide paid sick leave law is scheduled to go into effect in late-March 2019.  Michigan is currently the only state that (1) has a statewide paid sick leave mandate, and (2) preempts local paid sick leave ordinances via a law other than the statewide paid sick leave mandate. Michigan had prohibited local paid sick leave mandates since 2015, and thereafter passed its statewide paid sick leave law in 2018.

If you have any questions regarding these issues, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

By Joshua D. Seidman and Tracy M. Billows

Seyfarth Synopsis: As expected, on November 8, 2016, residents in Washington and Arizona voted on and passed the nation’s sixth and seventh statewide mandatory paid sick leave laws.

The 2016 election will go down as one of the most memorable elections in our lifetime. As the country scrambles to prepare for the seemingly inevitable wave of change that will mark at least the next four years, one understated winner last Tuesday was the nation’s recent mandatory paid sick leave wave.

As highlighted in last week’s post, two statewide mandatory paid sick leave (“PSL”) laws were poised for passage during the November 8 election. And pass they did. Voters in both Washington and Arizona passed separate ballot measures on election night that will extend mandatory PSL obligations to employers across both states. Washington and Arizona are now the sixth and seventh states in the country to pass such a law, following Connecticut, California, Massachusetts, Oregon, and Vermont.

The Washington and Arizona laws are currently slated to go into effect on January 1, 2018 and July 1, 2017, respectively. While administrative guidance and state regulations could clarify and adjust employers’ compliance obligations in the coming months, below are some highlights of these two impending laws as of today.

Washington PSL Law

Employers covered by the Washington PSL law must allow employees to accrue one hour of PSL for every 40 hours worked. Employers also must allow 40 hours of earned, unused PSL to carry over at year-end. The approved initiative currently is silent on whether there is any cap on how much PSL employees can ultimately accrue and use in a single year. Employers should keep close watch on whether any such requirements are imposed before January 1, 2018.

Relatedly, the Washington PSL law expressly permits frontloading PSL at the start of a benefit year. However and significantly, frontloading PSL may not get rid of an employer’s year-end carryover obligations. The approved initiative states that frontloading is allowed if it “meets or exceeds the requirements of this section for accrual, use, and carryover of paid sick leave.”

Employees eligible can use Washington PSL for a number of reasons, including (a) their own injury, illness, or health condition, (b) the injury, illness, or health condition of a covered family member, (c) closure of the employee’s place of business or employee’s child’s school or place of care by order of a public official, and (d) certain absences related to domestic violence. Covered family members include, among other relationships, the employee’s children, parents, spouse, registered domestic partner, grandparents, grandchildren, and siblings.

The Washington law also contains a number of other substantive, technical components. These include, among other provisions, (a) employers can mandate that employees provide reasonable notice of a PSL absence, (b) a 90 calendar day usage waiting period for new hires, (c) employers may require employees to verify that PSL was used for an authorized purpose only after an absence exceeding three days, and (d) unused PSL does not need to be cashed out upon separation of employment.

Arizona PSL Law

Unlike the Washington law, the Arizona PSL law determines covered employers’ accrual and usage obligations based on the size of their workforce. Employers with 15 or more employees must allow employees to accrue and use at least 40 hours of PSL per year. The accrual and usage duties drop to 24 hours of PSL per year for smaller employers. The law requires that PSL accrue at least as fast as one hour for every 30 hours worked, regardless of employer size.

The Arizona law notes that earned PSL shall carry over from one year to the next, subject to the above usage cap limitations. However, the law does not clarify whether employers can cap how much unused PSL carries over at year-end. Importantly, Arizona employers can eliminate their year-end carryover obligations if they (a) pay employees for unused PSL at year-end, and (b) provide employees with a lump grant of PSL that is equal to the above amounts (depending on employer size).

Among the protected reasons for using Arizona PSL are (a) employees’ own injury, illness, or health condition, (b) the injury, illness, or health condition of a covered family member, (c) certain public health absences, and (d) certain absences related to domestic violence, sexual violence, abuse, or stalking of the employee or the employee’s covered family member. Covered family members include, among other relationships, any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Other substantive components of the Arizona PSL law include (a) PSL begins accruing on the later of July 1, 2017 or an employee’s start of employment, (b) there is a 90-day PSL usage waiting period for employees hired after July 1, 2017, (c) PSL must be provided upon employee request, which can be done orally, in writing, electronically, or by other means acceptable to the company, and (d) unused PSL need not be cashed out upon separation of employment.

Employers in Washington and Arizona should continue to monitor developments involving their state’s respective PSL laws, including looking for possible regulations, FAQs, or notices and begin taking steps as soon as possible to ensure that they will be able to achieve full compliance by the July 1, 2017 (Arizona) and January 1, 2018 (Washington) effective dates.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By Joshua D. Seidman and Tracy M. Billows

Seyfarth Synopsis: On November 8, 2016, two states — Washington and Arizona — are poised to become the sixth and seventh states in the country to pass a statewide mandatory paid sick leave law.

The noise surrounding the 2016 election’s major party candidates has left the American public full of both tension and hope heading into Election Day.  While many have been focusing on Tweets, video recordings, and alleged scandals, the paid sick leave epidemic that has spread throughout the nation in recent years has quietly infected this year’s election as well.  In particular, both Washington and Arizona have proposed statewide paid sick leave bills on their respective ballots.  When the Election Day dust settles, the country will not only know its Commander in Chief for the next four years, but also whether the number of statewide paid sick leave laws has increased from five to either six or seven.

The 2016 election would not be the first time a statewide paid sick leave law was passed through a ballot initiative.  In 2014, Massachusetts residents voted on and passed the state’s Earned Sick Time Law.

Washington Paid Sick Leave – Initiative Measure No. 1433

  • Paid Sick Leave Accrual, Usage, and Carryover:
    • Accrual Rate:  One hour of paid sick leave for every forty hours worked.
    • Accrual and Usage Caps:  The proposal currently is silent on whether there is any cap on how much paid sick leave employees can ultimately accrue and use in a single year.  Barring any further clarification from the state, if passed, the Washington proposal would be the first paid sick leave law in the country that does not set at least an accrual or usage cap.
    • Frontloading:  While frontloading paid sick time is expressly permitted under the proposed law, it may not get rid of an employer’s year-end carryover obligations.  The proposal states that providing paid sick leave in advance of accrual is permitted if the frontloading “meets or exceeds the requirements of this section for accrual, use, and carryover of paid sick leave.”
    • Carryover of Unused Paid Sick Leave:  Employers would only be required to allow 40 hours of earned, unused paid sick leave to carry over at year-end.
  • Reasons for Use:  Employees would be able to use earned paid sick leave for a number of reasons, including (a) their own injury, illness, or health condition, (b) the injury, illness, or health condition of a covered family member, (c) closure of the employee’s place of business or employee’s child’s school or place of care by order of a public official, and (d) certain absences related to domestic violence as set forth under the state’s Domestic Violence Leave law.  Covered family members would include, among other relationships, the employee’s children, parents, spouse, registered domestic partner, grandparents, grandchildren, and siblings.

Arizona Proposed Fair Wages and Health Families Act – Proposition 206

  • Paid Sick Leave Accrual, Usage, and Carryover:
    • Accrual Rate and Cap:  (a) Employers with 15 or more employees would be required to allow paid sick leave to accrue at least as fast as one hour for every 30 hours worked, up to 40 hours per year; (b) While the accrual rate remains the same for smaller employers, such employers would only be obligated to allow employees to accrue up to 24 hours of paid sick leave per year.
    • Usage Cap:  (a) Employers with 15 or more employees – 40 hours per year; (b) Employers with fewer than 15 employees – 24 hours per year.
    • Carryover:  The proposal states that earned paid sick time shall carry over from one year to the next, subject to the above usage cap limitations.  It is unclear from the current proposal if employers would be allowed to set a cap on how much unused sick time carries over at year-end.
    • Frontloading:  Employers would be able to get rid of their year-end carryover obligations if they (a) pay employees for unused paid sick leave at year-end, and (b) provide employees with a lump grant of sick time that is equal to the above amounts (depending on employer size).
  • Reasons for Use:  Employees would be able to use earned paid sick leave for a number of reasons, including (a) their own injury, illness, or health condition, (b) the injury, illness, or health condition of a covered family member, (c) closure of the employee’s place of business or employee’s child’s school or place of care by order of a public official, (d) care of the employee or a covered family member when it has been determined by health authorities that the individual’s presence in the community may jeopardize the health of others due to exposure to a communicable disease, and (e) certain absences related to domestic violence, sexual violence, abuse, or stalking of the employee or the employee’s covered family member.
  • Covered family members would include, among other relationships, an employee’s child (regardless of age), parent, spouse or registered domestic partner, grandparent, grandchild, and sibling, and any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Employers in Washington and Arizona should continue to track whether their states’ respective paid sick leave initiatives have passed.  And, if either initiative is approved, employers should begin taking steps as soon as possible to ensure that they will be able to achieve full compliance by the July 1, 2017 (Arizona) and January 1, 2018 (Washington) effective dates.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By: Johanna T. Wise and Andrew J. Masak

While most of the political pundits, and indeed the country, are busy analyzing the election results, four new localities passed paid sick leave laws.  As we previously blogged, the current landscape of paid sick leave laws is a patchwork of varying regulations, causing headaches for many employers.  And compliance isn’t getting any easier as the number of states and cities with paid sick leave laws rises.

Paid sick leave laws were on ballots and passed in: Massachusetts; Trenton, NJ; Montclair, NJ; and Oakland, CA (while California already has a paid sick leave law, Oakland now expands on it).  Specifically:

Massachusetts:  Allows employees to accrue a minimum of one hour of paid sick time for every 30 hours worked.  Caps paid sick time at 40 hours annually.

Oakland, CA:  Gives employee’s one hour of paid sick leave for every 30 hours worked.  Current California law gives workers a minimum of 24 hours of paid sick leave.

Montclair, NJ:  Gives employees one hour of paid sick leave for every 30 hours worked.

Trenton, NJ:  Gives employees one hour of paid sick leave for every 30 hours worked.

The tide is certainly rising on the number of paid sick leave laws throughout the country.  At the end of 2013, only one state and six cities had such laws.  As it stands today, three states and sixteen cities have sick leave laws on the books.  New Jersey now has eight cities with paid sick leave laws, making it the clear municipal leader in the area (Jersey City, Newark, East Orange, Irvington, Passaic, Paterson, Montclair, and Trenton).  And, while the list of regulations employers face continues to surge and business considerations mount, employers are wise to review their current policies and consider how they will record and monitor employees’ hours for purposes of determining accruals and eligibility.

For a more detailed analysis of these laws, please see the Management Alert written by our colleagues, Joshua Seidman and Anne Bider.

For additional information on paid sick leave laws, contact the authors, any member of Seyfarth’s Absence Management and Accommodation Team, or your Seyfarth attorney.