Beware Hurdles to a Uniform Paid Sick and Safe Time Policy

Developing a paid sick and safe time (PSST) policy that complies uniformly across the U.S.—or at least with laws in two or more jurisdictions—is increasingly challenging for employers. Without fail, and despite some overlap, each new state or local law seems to contain one provision that could interfere with the goal of establishing uniform practices.

To test that theory, we reviewed the basic aspects of PSST laws (i.e., an employer's available methods for complying, types of family members for whom leave may be used, rules about accrual, etc.) across jurisdictions to identify particular pain points. Based on that survey, we highlight below one provision from each jurisdiction with a generally-applicable PSST law (and some industry-specific and federal government contractor laws) that demonstrates why developing a multi-city, multi-state or nationwide PSST policy may be a hard resolution for employers to keep, depending on where they operate and the methods of compliance chosen.

• Using existing policies

In Berkeley, Calif., benefits that are not payable from an employer's general assets cannot be used to satisfy an employer's paid leave obligations. In Tacoma, Wash., if an employer uses vacation or paid time off (PTO) to comply with the law, the entire leave bank—not just the amount of leave required by the law—is subject to the law's protections.

• Unionized workforces

The law applies to employees covered by a collective bargaining agreement (CBA) in San Diego. In Connecticut, the law applies once a CBA entered into before Jan. 1, 2012 expires or is renegotiated; similarly, in Maryland, outside the construction industry, the law applies upon the expiration of a CBA entered into before June 1, 2017.

• Family members

In Oakland, Calif., shortly after being hired, and annually each year after, unmarried employees must be allowed to designate a person for whom they can use leave. In Washington, D.C., a covered family member includes a person with whom the employee shares or has shared, for at least the preceding 12 months, a mutual residence and with whom the employee maintains a committed relationship. In Westchester County, N.Y., a covered family member includes a person related by blood or affinity.

• Accrual

In California, if employees accrue leave (instead of leave being front loaded), hard annual accrual caps cannot be used. Rather, the law requires a maximum bank, i.e., employees accrue leave until their bank reaches a certain level, at which point leave temporarily stops accruing until they use leave, at which point accrual resumes. In Rhode Island, employees must accrue leave when they are on paid leave and during holidays. As originally enacted, Michigan did not set an annual or overall cap on how much leave an employee could accrue. Although recent amendments set accrual caps, a never-before-seen provision has been included that cannot be used by employers elsewhere: limiting accrual to no more than one hour per week, i.e., even if an employee worked sufficient hours to accrue more hours, only one would be accrued.

• Carryover

In Chicago and Cook County, Ill., different carryover requirements apply if an employer is covered by the federal Family and Medical Leave Act. In Philadelphia, the law does not set a cap on how many leave hours can be carried over. In SeaTac, Wash., accrued but unused leave must be cashed out (however, the state law requires a specific amount of leave to be carried over, so employers must ensure their end-of-year practices comply with both laws, if applicable).

• Front loading

In San Francisco, employers cannot provide a pure frontload, i.e., they are not relieved of the obligation to track accrual and carry-over unused leave at year-end if they provide a certain amount of leave each year. In Los Angeles, front loading is only partially permitted; employers can front load 48 hours each year, but at year-end must carry-over up to 48 unused hours and in the next year front load an additional 48 hours, though they can "chop off" any leave hours that exceed 72 hours. In Santa Monica, Calif., employers with 26 or more employees must front load 72 hours annually. In Minneapolis and Saint Paul, during the second and subsequent years of coverage, employers must front load 80 hours annually.

[SHRM members-only how-to guide: How to Develop and Administer Paid Leave Programs]

• Waiting periods

Under ordinances adopted (but not yet in effect) in Austin and San Antonio, employers cannot institute waiting periods to use leave for at-will employees—although it is likely neither ordinance will take effect because Texas state legislators are moving towards preempting local PSST laws. Moreover, the Austin ordinance is currently the subject of litigation.

• Covered uses

Employees can use leave: to care for a service dog (Emeryville, Calif.); for baby bonding (Montgomery County, Md.); if a covered relation's school or place of care is closed due to inclement weather, loss of power, loss of heating, loss of water or other unexpected closure (Duluth, Minn.); to attend a child's school-related conference, meeting, function or other event requested or required by school officials (New Jersey); or to deal with the death of a family member (Oregon).

• Using leave

In Massachusetts, employees must be able to use leave when they are transferred out of state. In Seattle, if employers track increments of work in less than hourly increments—e.g., 5-minute blocks—employees must be able to use leave in that increment. For federal government contractors covered by Executive Order 13706, a written or electronic communication must explain why a request to use leave was denied.

• Payment

In Vermont, payment for leave used cannot be delayed while  an employer waits for an employee to provide documentation supporting an absence.

• Paystubs

In Arizona, paystubs must show the amount of pay an employee received when taking leave. In Washington State, if an employer limits how much leave can be carried over from one year to the next, the first paystub issued in the subsequent year must indicate the amount of leave that was not carried over.

• Mandatory policies

In New York City, the law requires numerous practices to be expressly discussed in a written policy. Similarly, if employers want to implement various optional provisions at their discretion, adoption of those practices must be documented in a written policy to comply with the law.

This above examples focus exclusively on challenges of universal compliance with PSST laws. However, employers must remember that their PSST policies and practices cannot be developed in a vacuum. There are numerous laws that overlap with PSST with which employers may be required to comply and consider when implementing policies and practices, including, but not limited to, family and medical leave (unpaid and/or paid), domestic violence leave, kin care, fair scheduling, and disability accommodation.

Multijurisdictional employers should stay tuned for further developments throughout 2019 on this always-evolving topic and are encouraged to consult with counsel as needed to tackle these complexities.

Adam Fiss, John Hong and Sebastian Chilco are attorneys in the San Jose, Walnut Creek and San Francisco offices of Littler. © Littler. All rights reserved. Reposted with permission.

Related SHRM Article:

How Can Employers Navigate Multiple Leave Laws, SHRM Online, March 2018

Related SHRM Resources:

Multistate Employer Leave of Absence Policies and Practices

State-By-State Employment Laws

Leave Laws by State and Municipality