Will More States Provide Paid Sick Leave After Election Day?

Arizona and Washington state add paid-sick-leave proposals to minimum-wage ballot measures

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[Editor's Note: Voters approved the measures in Arizona and Washington state.] 

If voters in Arizona and Washington state check "yes" on the ballot to increase their respective state's minimum wage, they'll also be approving mandatory paid-sick-leave measures.

There's been a push in a number of cities to raise the minimum wage and provide paid sick leave, said Bryan O'Connor, an attorney with Jackson Lewis in Seattle. Efforts to do this through the legislature for the last few years have failed, and that's why it went to a state ballot initiative in Washington, he said.

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Citizen or popular initiatives that propose statutory or constitutional changes are only permitted in certain states. If a threshold number of voters sign a petition, the issue will be placed on the ballot for a public vote.

Although much of the attention has been placed on the minimum wage part of Arizona's Proposition 206, the paid-sick-leave portion would present more challenges for employers in the state, according to Tibor Nagy Jr., an attorney with Ogletree Deakins in Tucson, Ariz.

Arizona

On Nov. 8, Arizonans will decide whether to incrementally raise the minimum wage from $8.05 per hour to $12 per hour by 2020.

If passed, the measure would also require employers with 15 or more employees to provide workers with up to 40 hours of accrued annual paid sick leave. Businesses with fewer employees would have to provide 24 hours. Employees would accrue the time at a rate of one hour per 30 hours worked.  

Workers would be able to use the leave to address their own or a family member's medical care, for a public health emergency or for domestic violence issues.

The measure would change the landscape for small businesses, Nagy said. All private employers and municipalities would be covered under the law, and it would even apply to part-time and temporary employees.

It's similar to the Family and Medical Leave Act (FMLA) in that employees can't be disciplined or retaliated against for taking the leave, he said. Although, the sick leave would be paid, whereas FMLA leave is not, he noted.

[SHRM members-only toolkit: Managing Family and Medical Leave]

Nagy said the measure is likely to pass based on the latest polls. If it does, employers will need to update their policies and procedures, which should be reviewed by an attorney to ensure employers' practices fulfill their obligation, he added. "They may face civil penalties if they don't get it right."

Washington

Washington's Initiative 1433 would gradually raise the state minimum wage from the current $9.47 to $13.50 by 2020.

Under the proposal, all employees would accrue an hour of paid sick leave for every 40 hours they work.

The statewide initiative in large part is modeled on Seattle's ordinance, O'Connor explained.

Seattle's 2012 Paid Sick and Safe Time Ordinance provides time off from work for a number of reasons, including an employee's own or a family member's illness or injury, for medical appointments and for  "critical safety issues" like domestic violence, sexual assault and stalking. (The minimum amount of hours an employee must accrue in Seattle depends on employer size).

The state measure would provide for similar protections, but there are some provisions that are more generous to employees than Seattle's law, O'Connor noted.

For example, he said, under Seattle's law employees begin accruing the time immediately upon hire, but employers don't have to let them use the accrued time off until they've been employed for 180 days. However, the statewide measure permits employees to begin using the time after 90 days.

Additionally, Seattle employees who are rehired within seven months can recapture their accrued but unused sick leave. However, the state law would reinstate accruals for employees rehired within 12 months.

Employees will get the benefit of the most favorable provisions that apply to them, O'Connor explained. So businesses in Seattle and other areas that have local ordinances would be challenged with applying some parts of the local law and some parts of the state law, depending on which is more beneficial to employees.

He noted that "a few bugs have to be shaken out" of the statewide measure if it passes. As an example he said that the required carryover to the next year is capped at 40 hours, but there's no express limit on how many hours an employee can use in a year.

It's not clear how much time off an employer has to give if it turns out an employee worked a lot more hours than expected.

"Some of the wrinkles will be smoothed out through [the state department of labor and industries] adopting regulations," he said. "But there still will be growing pains for employers. They're going to suffer from the administrative burden of complying."

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