Paid sick leave requirements proving difficult to employers

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As we have previously reported, the trend of states and jurisdictions enacting paid sick leave (PSL) requirements continues, posing compliance challenges for multistate employers and employers with employees in a both a city and a state with different PSL requirements.

As of January 1, 2018, there are nine states (Arizona, California, Connecticut, Maryland, Massachusetts, Oregon, Rhode Island (effective July 1, 2018), Vermont, and Washington) and the District of Columbia, as well as multiple other jurisdictions (including Chicago, Minneapolis, New York City, and Philadelphia) that have enacted some form of PSL requirements. In addition, Executive Order 13706 requires certain federal government contractors to provide PSL to covered employees.

There is also an opposing trend of state governments prohibiting local governments from enacting local PSL requirements. Approximately 18 states have passed these types of paid leave preemption laws, including Florida, Michigan, Ohio, and Wisconsin. Is your head spinning yet?

This week we briefly discuss items that are often addressed in a PSL statute or ordinance. Next week we will review some general policy considerations to assist employers confronted with compliance obligations in multiple jurisdictions.

A PSL statute or ordinance often addresses the following:

· Eligibility or Restrictions: Coverage ranges from essentially every employer and employee to only certain industries or types of employees. For example, Washington excludes employees who are exempt, while Connecticut only includes service workers. In other cases, company size or hours worked by an employee impacts requirements.
· Accrual Rate and/or Cap: Among the states, the accrual rate currently ranges from one hour of PSL for every 30 hours worked to one hour of PSL for every 52 hours worked. Some locations allow accruals to be capped, either yearly or overall, and some locations, such as Washington, do not have any accrual limit at all.
· Covered Uses: In addition to time off for the employee’s own illness and doctor visits, all jurisdictions provide time off for the illness of a family member (although definitions of who is covered may vary). Other common purposes include time off related to domestic violence (to include counseling or securing other living arrangements), as well as time off when a child’s school or day care facility is closed due to a public health emergency.
· Advance Notice Requirements: In general, advance notice cannot be required unless the need is foreseeable. So, companies should be prepared for PSL to be used without advance notice.
· Ability to Require Documentation: Generally, you cannot require documentation to support the use of PSL, although some locations do allow requests for documentation, such as requiring a doctor’s note for absences of more than three scheduled work days.
· Ability to Require Compliance with Other Call-In Procedures: Most programs limit the ability to require compliance with other call-in procedures and most specifically prohibit requiring that an employee be responsible for making arrangements to have someone else cover the time off.
· Annual Usage or Carryover Requirements or Limits: Generally there are limits as to how much PSL can be accrued or used, usually based on a single calendar year. In other cases, there may be a limit on annual carryover of PSL.
· Requirements of Rehire: Most programs have a provision requiring accrued but unused PSL to be reinstated to an employee upon rehire, usually if the rehire occurs within a year. The federal program, applicable to certain contractors, specifically requires reinstatement of PSL even if the employee was paid for unused PSL.
· Payout Allowed or Required: Most programs do not require a payout of PSL, either at year-end or at termination, but do allow for such a payout.
· Retaliation or Discipline Prohibited: Retaliation for using or requesting PSL is generally prohibited. Some programs have a provision making clear that an employee may be disciplined for misusing PSL. However, with limited ability to document the absence, establishing misuse will be difficult. Companies should consider potential problems, such as the effect of PSL on points under an attendance system or loss of holiday pay for an unscheduled absence before or after the holiday.
· Tracking or Notice Requirements: Finally, most programs have requirements about tracking PSL and notice to employees. For example, the Washington statute requires a monthly notice to employees about time accrued and any loss of PSL. The loss could include use by the employee, loss due to a “shared time” contribution, loss due to payout, or loss due to carryover limits.

We have identified many key PSL provisions. Of course, we recommend employers carefully review the applicable laws to confirm compliance with the myriad of requirements that are unique to the various states and localities with PSL laws. To assist with that endeavor, next week’s article will provide compliance tips to help ensure your company’s leave policy satisfies PSL requirements and minimizes any administrative burden.

This article originally appeared on the Foley & Lardner website. The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.

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