Earlier this month, we told you about California’s new statewide sick leave law, which Governor Brown subsequently signed. While minimum wage increases seem to be getting the lion’s share of the press right now, proposed paid sick leave laws are on the rise nationwide, too. Connecticut is the only other state that grants paid sick leave (since 2012) and just passed more tweaks to it to guarantee at least some annual paid sick leave for most full and part-time employees. Overall, California’s law is the tenth in the nation when you count those at the state or local level that requires employers to provide paid sick leave, but that just scratches the surface of what is happening.
As I have been tracking on Twitter, the pace of sick leave laws proposed or passed has been nearly as torrid as minimum wage laws. California aside, nearly 20 states have considered paid sick leave legislation of some type in 2014: Alaska, Arizona, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Michigan, Nebraska, New Jersey, New York State, North Carolina, Oregon, South Carolina, Vermont and Washington. Some of these proposed laws provide a substantial benefit. For instance, Iowa’s legislature is considering the Healthy and Safe Families and Workplaces Act, which would have workers earn over five hours (exactly “five and fifty-four hundredths hours”) of sick time for every 40 hours of work, up to an 18-day (144-hour) cap. Massachusetts voters will consider a paid sick leave ballot initiative in November.
Cities and towns have gotten in on the act, too. Five cities in New Jersey have paid sick leave ordinances. New York City has a paid sick leave law, as does Seattle and Washington, D.C. San Diego’s city council coupled a minimum wage increase with an ordinance that gave full-time employees in the city at least five paid sick days each year. On the same day, Eugene, Oregon’s city council joined Portland and passed a paid sick leave law that will go into effect in July 2015, barring a successful legal challenge. The city of Eugene’s employers would have to give workers an hour of paid time off for every 30 they work, with a maximum of 40 hours a year. New York City’s Earned Sick Time Act (ESTA) already took effect on April 1, 2014. ESTA requires employers with five or more New York City employees to provide a minimum of one hour of paid sick time for every 30 hours worked, up to a maximum of 40 hours per calendar year.
The trend toward action hasn’t always been toward granting sick leave, though. Ten states (Georgia, Wisconsin, Louisiana, North Carolina, Tennessee, Mississippi, Kansas, Arizona, Indiana, and Florida) have enacted laws that prohibit cities, counties, and other municipalities from passing mandatory paid sick leave laws. For example, the Florida preemption law passed in 2013, contained in Fla. State. 218.077, prohibits political subdivisions of the state from requiring any employer to provide “employment benefits not otherwise required by state or federal law.” The statute applies to any employment benefits, from group health to vacation to paid holidays, and also applies to the minimum wage. So while it is not directed solely against paid sick leave and does not prevent the state from enacting paid sick leave laws, it has the effect of preventing any Florida municipality from following in New York, Portland, or San Diego’s footsteps. Business groups argue that laws like these avoid a patchwork of city and local laws that may have different standards and requirements.
At the federal level, the Democrat-sponsored Healthy Families Act is unlikely to be passed soon, meaning that employers can expect that sick leave will remain a patchwork of various laws and ordinances with potentially conflicting terms regarding coverage, accrual, and usage.
Insights for Employers
One way or the other, a majority of states have now waded into the debate over paid sick leave. Unlike legislation over the minimum wage, which has a long history, measures related to paid sick leave are relatively new. Employers should continue to track this new area of regulation carefully, as laws shift quickly. For instance, Milwaukee voters established mandatory paid sick leave in 2008, only to have the state legislature retroactively eliminate it in 2011.
Mandatory paid sick leave laws may impose new direct costs for those employers who have to comply with laws in multiple jurisdictions or who do not have pre-existing paid sick leave policies. They also typically require employers with pre-existing paid sick leave policies to review and/or revise their existing policies and how they are administered. Many of the laws under consideration also add restrictions on when employers can request documentation for sick leave as well, and add penalties for retaliation for the use of sick leave.
Even if the proposed federal law passes, it will not likely preempt state and local laws, but provide a baseline that state and local governments can extend, as states have done with minimum wage and other wage and hour laws.