SHRM Legislation Would Pre-Empt Local Sick-Leave Laws

By Allen Smith, J.D. Jun 18, 2017

​SHRM is working on new legislation that, if enacted, would pre-empt state and local paid-sick-leave laws for employers that offer a minimum amount of paid leave and flexible work arrangements, said Mike Aitken, SHRM's vice president of government affairs.

"We hope it will be introduced by Rep. Mimi Walters [R-Calif.] in July," he told the SHRM 2017 Annual Conference & Exposition, noting that the bill is expected to have Democratic as well as Republican sponsors.

Employers' participation in the paid-leave and flexible work options would be voluntary. The number of paid-leave days for employees of participating employers would be determined by company size and workers' tenure.  

Participating employers also would provide a flexible work option for all employees, part-time employees included. The flexible work arrangement might be telecommuting, a compressed work schedule, a biweekly work program, job sharing, flexible scheduling or predictable scheduling, for example.

The employer would be free to choose which flexible work options it would provide to employees. One group of employees could have predictive scheduling and another group could have remote work, Aitken noted.

Benefit of Pre-Emption

The proposal's pre-emption provisions would simplify the current tangle of conflicting state and local paid-leave requirements.

[SHRM members-only toolkit: Coordinating Leaves of Absence]

He shared that one employer was being sued by the city of San Francisco for violating its sick-leave statute even though the employer was complying with a conflicting provision of California's paid-sick-leave law.

Seven states have paid-sick-leave statutes: Arizona, California, Connecticut, Massachusetts, Oregon, Vermont and Washington. A growing number of cities are adopting the measures too, according to the National Conference of State Legislatures.

Other Paid Leave Bills Would Be Mandatory

While the SHRM-developed proposal would make participation voluntary, some bills introduced in Congress would make paid leave mandatory.

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For example, the Healthy Families Act, S. 636 and H.R. 1516, would require employers with 15 or more employees to provide up to 56 hours of paid sick leave per year. And the FAMILY Act, S. 397 and H.R. 947, would create a paid family leave insurance fund through a payroll tax to provide partial wage replacement for Family and Medical Leave Act-qualifying events. However, neither bill is likely to be enacted, Aitken believes.

The Trump administration also has announced an effort to provide paid leave through the expansion of unemployment insurance systems. SHRM is not an advocate for the Healthy Families Act, the FAMILY Act or Trump's proposal, Aitken noted.

Proposal's Provisions

The SHRM-supported proposal would amend the Employee Retirement Income Security Act.
Employees would have the flexibility to determine how and when they use the sick leave provided by the legislation, unless an employer determines that a specific instance of use would unduly disrupt business operations. Leave for part-time employees would be prorated based on a calculation subject to the employer's full-time designation.

Employers would determine whether employees could roll over or cash out any accrued leave. While employees would accrue leave upon employment, they may be prohibited from using the leave in their first 180 days.

Individuals who have worked 1,000 hours during the previous 12 months would be eligible to participate in the flexible work arrangement. Employers could specify which employee positions could participate in a flexible work option, and employee participation would be voluntary.


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