Concurrent Session Tuesday, 3:00-4:00 pm

Transcription

1 PAID SICK LEAVE: IT S GETTING CONTAGIOUS SHERI GIGER, ESQ. JACKSON LEWIS P.C. Test Your Knowledge: 1. Which U.S. President created the U.S. Department of Labor? 2. In what year? 3. Which U.S. President took the position that every U.S. worker needed 2 to 3 months of vacation each year? 4. In what year? History of Paid Sick Leave Prior to 2007, no law in the country required Paid Sick Leave ( PSL ). The U.S. is the only industrialized nation without a national paid sick leave requirement. 1910: President Taft s efforts failed 1993: FMLA unpaid leave passed There is a new federalism and it is spreading.

2 History of Paid Sick Leave San Francisco, CA Washington, D.C. CONNECTICUT History of Paid Sick Leave Seattle, WA Newark, NJ Jersey City, NJ New York, NY CALIFORNIA East Orange, NJ Oakland, CA Montclair, NJ MASSACHUSETTS Portland, OR (preempted) Eugene, OR (preempted) Philadelphia, PA Bloomfield, NJ OREGON Montgomery Co., MD Passaic, NJ Patterson, NJ Trenton, NJ Irvington, NJ Emeryville, CA Pittsburgh, PA (currently on appeal) VERMONT Tacoma, WA Plainfield, NJ San Diego, CA Los Angeles, CA Elizabeth, NJ New Brunswick, NJ 2017 ARIZONA Spokane, WA Santa Monica, CA Minneapolis, MN Chicago, IL Cook County, IL St. Paul, MN Berkley, CA Morristown, NJ FEDERAL CONTRACTORS Current PSL & Beyond 2018 Beyond?? MARYLAND RHODE ISLAND WASHINGTON STATE Austin, TX Duluth, MN? MAINE? MICHIGAN? Dallas, TX????

3 Who Has Paid Sick Leave? 68% of all workers have access to paid sick leave* 93% of managers 85% of professionals 79% of office/administrative support 73% of installation, maintenance, and repair PSL laws seek to fill in gaps 47% of construction, extraction, farming, fishing, forestry 46% of service workers *U.S. Bureau of Labor Statistics, March 2017 Paid Sick Leave: Cost Savings? Reduce government spending Savings to public health insurance programs Savings from reduced need for public assistance Promote savings for employers Worker productivity presenteeism Lower turnover rates Reduced workplace contagion Fewer worker injuries *July 2017, National Partnership for Women & Families, Fact Sheet Structure of PSL Laws All use a similar approach: Eligible employees: Employer size in city; Work within city for certain number of hours; Regularly work in the city or occasional worker. Accrual formula: 1 hour PSL for every X hours worked. When accrual begins, when accrued time can be used. Reasons for leave: Eligible employee or family member s illness Family member defined broadly; Reasons beyond medical.

4 Structure of PSL Laws All use a similar approach: (cont.) Employer and employee notice requirements. Employer right to medical documentation to justify PSL use. Carry over: Many require carry over of accrued, unused time. Employer s current PTO policies may satisfy if they meet all other elements of law (like accrual, carry over, uses of leave). Pay at end of employment: Usually not required. Anti-retaliation provision. Enforcement mechanism. Current Landscape: Paid Sick Leave States with local paid sick leave or state paid sick leave law. *Not pictured, Puerto Rico The Challenge: Paid Sick Leaves Common provisions Unique requirements Multi-state compliance Recordkeeping & HRIS systems

5 Permissible Uses of PSL time Most common permissible uses of PSL: An employee s mental or physical illness, injury, or health condition; An employee s need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; An employee s need for preventive medical care; Care of a family member with a mental or physical illness, injury or health condition; Care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; Care of a family member who needs preventive medical care. Reasons for Leave Beyond the Usual Domestic violence, sexual assault, stalking: D.C., Seattle, Connecticut, Oregon Public health emergency: Seattle, NYC, Jersey City, Oregon, NJ cities To provide care for a guide dog, signal dog, or service dog of the employee, employee s family member, or the person designated by the employee: Emeryville, California Layered Multi-State Challenges State PSL Local PSL Paid Family Leave Pregnancy Accommodation & Leave

6 Integration with Other Laws and Policies is a Challenge ADA (ADAAA) and state anti-discrimination laws Leave as an accommodation (disability) Family Medical Leave Act (FMLA) and state family leave laws FLSA/State salary deduction for exempt employees Pregnancy disability leave Workers compensation Victims of domestic violence, stalking and Sexual Assault Leave Paid benefits LTD/STD plans ERISA plans Collective bargaining agreements Current Landscape: Paid Family Leave Current Landscape: Pregnancy Accommodation & PDL

7 Compliance Strategies Evaluate Operations Determine where you have employees (both states and cities) Determine eligibility requirements Are you a covered employer? Do you have covered employees? Evaluate Current Paid Leave Policies/ CBAs Identify compliance gaps Gap Analysis Cover part-timers? Accrual based on hours worked or scheduled? Permit carry-over? Threshold issue: modify current policies to comply or create standalone policy

8 Evaluate Impact on Related Policies ADA, FMLA and state equivalents Workers comp Attendance policies Point-based systems Method of calling out sick Maternity/paternity or parental leave Other leaves Comply with Posting and Notice Requirements Posters Handbooks Designate Person to Track Updates Training: HR, payroll, managers Evaluate Impact on Operations Review payroll tracking systems and HR technology needs Consider extra costs associated with additional covered groups Draft Compliant Policy(ies) If multi-jurisdiction, consider one policy vs. core policy with addenda, or separate policies Consider a fail safe provision: Employees in need of paid leave for one of the purposes listed in the policy, and denied that leave, should contact the HR Department for an individual review.

9 Will employees accrue time, or will Company frontload sick leave time? Understand notice requirements posting requirements Identify any PSL laws that require individual employees to receive individual sick leave accrual and usage information Strategize on how to keep current on new PSLs being passed Modifying Leave Policies Perhaps the most significant challenge: modifying leave policies to comply with these laws. For example: Most employers do not provide leave to part-timers, seasonal, or temporary employees; some paid sick leave laws require this. Some employer policies provide for leave accrual based on scheduled hours; most paid sick leave laws require leave based on hours actually worked. Many employers do not permit carryover; most paid sick leave laws require carryover. Modifying Leave Policies There are various approaches to ensuring that existing leave policies comply with these new laws. These include: Modify existing PTO or sick policies to fully comply with new laws, including part-timers and carryover. Lower the number of PTO, sick or vacation days provided and move those days into a new sick pay policy that minimally complies with these laws, while maintaining separate PTO or vacation policy. Continue to allow company-provided sick, vacation or PTO, implement a new sick pay policy.

10 Just Say No! The Kibosh States In response to growing number of municipalities throughout the country, various states (10+) have enacted or proposed legislation colloquially referred to as Kibosh laws These laws state that cities or municipalities in a particular state cannot enact local paid sick leave laws Stated intent is to avoid a patchwork of different rules with respect to paid sick leave time thus stifling economic growth and job creation Just Say No! The Kibosh States Louisiana Mississippi North Carolina Oklahoma Tennessee Wisconsin Iowa Alabama Arizona Florida Georgia Indiana Kansas South Carolina Michigan Missouri Ohio Oregon (except for employers with less than 10 employees) PSL with Kibosh States Overlay Created by mapchart.net

11 Questions? Thank you! Concurrent Session Tuesday, 3:00-4:00 pm