On November 6, 2017, the New York City Council passed Int. 1313-2016 that amends the Paid Sick Leave Law.  Don’t panic, employers.

The law does not require additional leave. It merely adds another covered reason that employees may use earned paid time off.  New York City’s paid sick leave law will now be entitled the “Earned Safe and Sick Time Act.”

Employees will be able to use earned safe/sick time for the following reasons if the employee or the employee’s family member has been the victim of a “family offense matter”, sexual offense, or human trafficking:

  1. to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking;
  2. to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking;
  3. to meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit;
  4. to file a complaint or domestic incident report with law enforcement;
  5. to meet with a district attorney’s office;
  6. to enroll children in a new school; or to take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

Employers should update policies to make sure they are compliant with the new law as the law is effective May 5, 2018.

Employers will also be required to issue to all employees a Notice of Employee Rights notice to employees no later than June 4, 2018.  New hires hired on or after May 5, 2018 should be given a copy of the revised Notice of Employee Rights as well.  The DCA will be issuing a revised Notice of Employee.  We will update you when that is issued.

In November, voters in Arizona approved a ballot initiative that would require employers to provide paid sick leave.  The law goes into effect tomorrow.

Under the law, Arizona employers with less than 15 employees will have to provide up to 24 hours of paid sick leave.  Employers with 15 or more employees will have to provide up to 40 hours of paid sick leave.

In anticipation of the law, the Arizona Industrial Commission has issued FAQs, which can be found here.  The FAQs do make one significant change from the text of the law.  The FAQs do make clear that when counting employees for purposes of determining how much leave is to be offered, employers need only count employees working in Arizona.  Don’t get too excited.  This could change as the Commission itself notes that there might be further legislative guidance on this issue.

Employers not only need to make sure that they are offering leave, they will need to provide notices to the employees and post posters in both Spanish and English.

Arizona’s law, like many others, contains a no retaliation provision.  However, this provision should give employers pause.  Under the law, if any adverse action is taken against an employee within 90 days of them using sick leave, there is a presumption that adverse action was retaliatory.  Employers will then bear the burden of proving by clear and convincing evidence that the action was for a legitimate purpose.

Employers should tread carefully before disciplining any employee who has recently used sick leave.

Today’s post comes to us courtesy of Justin Schwam, an associate in the Labor and Employment Department in Roseland:

60987399 - four young friends drunk and hungover after house party sitting on the couch.

With the trend of local paid sick leave ordinances continuing its progressive sweep in cities across the country, a consistent concern for companies located in the vicinity is whether their operations fall within the local law’s reach.  Does it only apply if the company is physically located in the city?  Or does any employee activity within the city trigger the often onerous recordkeeping obligations?

A few weeks ago, a Minneapolis judge limited the reach of the City’s law slated to go into effect later this year.   Judge Dickstein issued a temporary injunction against the enforcement of its Ordinance against businesses not physically located in the City.  Although the City argued that its exclusive enforcement authority meant that it would not apply the Ordinance against businesses outside the City, the court recognized that such assurances, “however sincere,” did not alter the Ordinance’s plain language.

The court’s analysis of this issue is also notable for its dissection of the City’s argument that its action was a permissible exercise of its police powers to protect the health and welfare of residents.  The court found that the City’s attempt to regulate extraterritorial businesses whose employees “are unlikely (or may never) enter the city while sick” was not a narrowly tailored means of addressing “identifiable harms within the city limits,” such as a rule governing the inspection of extra-territorial cows whose milk was sold within the city.  Because a prime justification for these local ordinances is typically the need to protect residents from the spread of contagion, the court’s refusal to accept policymakers’ assumptions that ill workers would use the sick leave benefit to “protect against potential harm” is significant.

Although the injunction ultimately may be lifted, or the ordinance amended – it’s not scheduled to take effect until July 1, 2017 – employers not located in Minneapolis are breathing a sigh of relief.   For now, employees who occasionally travel to Minneapolis will not be entitled to accrue sick leave under the law.

As local action on this issue will no doubt continue to pick-up steam, since more state governments are looking at measures to prevent municipal action than are moving to enact state-wide measures, it will be interesting to see how cases like this one influence future legal challenges and how future paid sick leave laws are drafted.  We will keep an eye out and report back on any developments.

 

Yesterday, the New Jersey Senate was set to vote on S799.  However, the bill was pulled from the agenda and no action was taken.  If passed, the bill would require “large” employers, those with 10 or more employees, to provide up to 9 days of paid sick leave per year.  Smaller employers will have to provide 5 days of paid sick leave per year.

Even if the bill passed the Senate and then the Assembly, it is unclear if Governor Christie would sign any paid sick leave law, especially as he has gone on record last week with not wanting to sign bills that he viewed as hostile to businesses in New Jersey.

We will let you know if there is further action on the bill by the Senate.

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13176052_sWith the flu going around our office in the last few weeks, I have heard lots of talk in the workplace about sick days.  Not complaints that employees who are sick do not have time available as they have quite a bit of PTO time, more complaints from other employees about why sick employees are coming to work.

Today alone, I was afraid when I came back from lunch that the employees might have risen up with pitchforks and torches against one employee who returned to work after being out sick the last few days with the flu, who for his or her own sake will not be named here.

I know mandatory sick leave laws are a headache for employers.  Complying with multiple sick leave laws in a variety of jurisdictions can be very complicated as well as costly for employers. The current iteration of sick leave laws do not realistically address challenges faced by small employers and add layers of complication to the administration of tracking leaves.  However, having a sick leave policy available definitely helps with employee morale issues.

Also, having a pandemic illness policy, i.e., when do you force employees to remain out of work, would certainly help, regardless of whether it is a flu pandemic or some or insidious zombie virus with which you are dealing. If you feel unprepared for a zombie apocalypse, don’t fret.  The CDC has you covered.  See, for example,  Preparedness 101_Zombie Apocalypse.

You cannot be less prepared for a zombie apocalypse than this poor girl whose brothers played an awful trick on her while she was high on anesthesia:

Just in case you missed it, today was the effective date of Elizabeth’s Paid Sick Leave law.  The law applies to all employers in Elizabeth.  Employees are eligible for paid sick leave if they work 80 hours per year in Elizabeth.

Under the law, employers with 10 or more employees must provide up to 40 hours per year of paid sick leave.  If the employer has less than 10 employees, then the employer must provide up to 24 hours of leave.

Leave may be taken for the following reasons:

  • An employee’s own health condition, including doctor’s appointments to diagnose or care for an illness
  • Care of a family member’s health condition, including doctor’s appointments to diagnose or care for an illness
  • Closure of employee’s place of business, employee’s child’s school or day care due to a public health emergency, or to care for a family member who has been quarantined.

41763450_sFamily members are broadly defined and include children (including biological, adopted, foster, step, or child of a civil union partner), parents (including step, foster adoptive and legal guardians), spouses, civil or domestic union partners, grandparents and their spouses or civil or domestic union partners, grandchildren, and siblings.

The law requires that employees be given written notice of the law. Employers must also post a poster advising employees of their rights under the law.

I contacted the Elizabeth Department of Health today and was told that the Department has not yet issued a poster, but that employers should create their own based on the provisions in the Ordinance.

Employers with questions about the contents of the notice or poster should contact employment counsel.

We just wanted to extend a hearty welcome to our newest colleagues in Minneapolis.  Effective today Fox Rothschild LLP has merged with Oppenheimer Wolff & Donnelly LLP.  With this merger, we now have 22 offices in 12 states and Washington D.C.

Although we try to focus on anything that might be of interest to employers and human resource professionals anywhere in the United States and beyond, today we thought we would focus on 15437773_swhat is on the horizon for Minneapolis employers in 2016.

Of perhaps the biggest concern for employers is paid sick leave.  In October 2015, the Minneapolis City Council announced that it was cancelling a planned public hearing on the initiative which had been scheduled for November 4, 2015.  Instead, lawmakers decided to put the brakes on and slow down the process.

According to the Minneapolis Post, the cancellation of the public hearing does not necessarily mean that a sick leave ordinance does not have support amongst members of the Council.  Rather, it seemed that the Council had put the cart before the horse.  Just two weeks prior to scheduled public hearing, there was still not even a draft of the proposed ordinance for review.

Council members have promised to revisit the issue in the Spring of 2016 and the Council has formed a work group, the Workplace Regulations Partnership, with members from workers’ rights groups, organized labor, employers, and business groups to discuss this ordinance and other ordinances such as the Fair Scheduling Ordinance which would require pay by employers for certain last minute schedule changes and a minimum wage ordinance.

The Workplace Regulations Partnership is not scheduled to report back to the Council until late February 2016.  We will keep an eye out for the report to see if it gives hints about what legislation may be passed by the Council.

17347130_sJust when we reported that Pittsburgh employers have gotten a reprieve from sick leave laws, New Jersey employers have yet another sick leave law with which to contend.

On December 16, 2015, the New Brunswick City Council passed Ordinance 121501 which will require New Brunswick employers to provide paid sick leave to employees.  That means that there will be 11 municipalities in New Jersey who have sick leave laws in effect in 2016.  To quote Bob Dylan’s “All Along the Watchtower,” “There must be some way out of here. . . . There’s too much confusion. I can’t get no relief.”

Adding to employers’ headaches is the fact the New Brunswick law differs from the other laws that have been passed.  However, the New Brunswick law is actually a more logical and business-friendly law than in the other 10 municipalities.  New Brunswick’s law focuses on the status of the employee to determine whether leave is available and if so, how much leave is available.  New Brunswick’s law also only applies to employers who have a business location in New Brunswick and who have at least 5 Full-Time Equivalent employees.

Under the law, employees are categorized as full-time or part-time and that classification determines the amount of leave the employee can accrue.  Full-time employees are defined as someone who averages 35 hours per week.  Part-time employees are defined as those who work between 20 and 35 hours per week.  Employees who average less than 20 hours per week or who are per diem or temporary employees for a hospital are not eligible to accrue paid time off.  Likewise, employees who work from home are not eligible for paid time off.

The law also differs from the other municipal laws in that leave accrues at the rate of 1 hour earned for every 35 hours worked.  Full-time employees may accrue up to 40 hours per year; part-time employees accrue up to 24 hours per year.  However, an employer with less than 10 total employees does not have to allow employees to accrue more than 24 hours per year.  Eligible employees begin to accrue time on the first day of employment and can use accrued time after the completion of 120 days of employment.

Leave may be taken for the following reasons:

  • the Employee’s mental or physical illness or injury, including the need for diagnosis and preventative care;
  • care for a family member’s mental or physical illness or injury, including the need for diagnosis and preventative care;
  • closure of the employee’s place of business or the employee’s child ‘s school  due to a public health emergency, or to care for a family member who has been quarantined;
  • as needed related to domestic violence, sexual assault, or stalking.

Employers in New Brunswick will need to examine sick/paid time off policies to insure compliance with the laws.  Even employers who have already reviewed policies due to one of the other municipal leave laws may need to take a second look given the differences in New Brunswick’s law.

The law goes into effect quickly.  It will be effective January 6, 2016.  The City has already issued the required poster which can be found here.

25318124_sIn a decision anxiously awaited by Pittsburgh employers, on December 21, 2015, a Philadelphia Common Pleas judge struck down Pittsburgh’s paid sick leave ordinance which was poised to go into effect in January.

The Pennsylvania Restaurant & Lodging Association and five businesses had filed suit in August 2015 to enjoin the law.  Judge Joseph James agreed with the Association’s argument that a 2009 Supreme Court case was binding and that state law prohibits municipalities organized under a home rule charter from regulating businesses’ employees.

The City and proponents of the Ordinance have not ruled out an appeal as of yet.  However, at least for now, employers and Pittsburgh do not have to worry about changing sick leave policies.

 

11993910_sIn August, the Pittsburgh City Council passed a paid sick leave ordinance that will require employers with 15 or more employees to provide up to 40 hours of paid sick leave.  Employers with less than 15 employees will be required to provide up to 24 hours of unpaid sick time for the first year.  After that, small employers will have to provide up to 24 hours of paid leave.  The Ordinance states that the law will be effective 90 days from the date regulations and the required notices are issued.

Before the law even had an effective date, several business groups filed a lawsuit challenging the Council’s power to enact the Ordinance.  The legal challenge is premised on the fact that Pittsburgh is established pursuant to a home rule charter.  The groups allege that there is a home rule law that prohibits cities formed under home rule charters from passing laws related to employment.

Not to be deterred, the City Controller issued the required posters on Monday and set the effective date as January 11, 2016.  Copies of the posters can be found here.  The business groups suing the City have stated that they plan to seek an injunction prohibiting the law from going into effect.  In the absence of such an injunction, the law will go into effect on January 11th and employers should review their sick leave policies for compliance.