This article was originally published in Law360
The legally mandated paid sick leave landscape is ever-changing, with new leave laws and legislation developing at the state, federal, county and city levels. Indeed, two weeks ago, the City of Santa Monica, California, finalized its paid sick leave ordinance, which will go into effect on Jan. 1, 2017. The city of Santa Monica joined five states, Washington, D.C., and more than 20 cities and counties in enacting some form of legally-mandated paid sick leave.
The momentum for legally mandated paid sick leave has turned compliance into a game of whack-a-mole. Not only must employers be vigilant and identify newly enacted laws that may apply to their business, but they must also navigate the complicated web of requirements to ensure compliance. Businesses that have employees in multiple jurisdictions with paid sick leave laws face additional administrative hurdles in their efforts to comply with potentially different accrual, record keeping, notice, posting and certification requirements, among others. Similarly, businesses with employees in San Francisco, Oakland, Emeryville, and, now, Santa Monica, California, face the added challenge of ensuring compliance with both the California and the local paid sick leave laws, which differ in many respects.
What Can Your Business Do Now to Comply?
1. Determine Which Paid Sick Leave Laws Apply to Your Business
The first step toward compliance is to identify all of the paid sick leave laws that may apply to your business and to each employee. The following jurisdictions have some form of legally mandated paid sick leave currently in effect.
Click here to view table.
In addition, the following jurisdictions have enacted paid sick leave laws that will go in effect in the near future: Vermont; Montgomery County, Maryland; Plainfield, New Jersey; Santa Monica, California; and Spokane, Washington.
2. Review and Revise Your Paid Time Off Policies
The second step is to review and revise your policies to ensure compliance with paid sick leave laws. The following is a list of issues employers may face when developing policies and practices that comply with paid sick leave laws:
- How does the company ensure compliance when more than one paid sick leave law applies to the same group of employees?
- Should the company draft an omnibus paid sick leave policy that aims to comply with multiple laws or draft jurisdiction-specific policies?
- Can the company comply by adopting an upfront allotment, unlimited time off or a universal paid time off policy?
- In what languages must the company provide the required notices and posters?
- Can the company require medical verification? And if so, when?
- Must the company pay for the costs associated with obtaining the employer-required medical verification?
- Does a paid sick leave law of a particular city apply to an employee who is not based there but regularly travels for work to that city?
- If the company changes its policies now, what is the business risk for prior noncompliance?
- Can the company rely on the statute alone, or are there published rules, regulations or other guidance that elaborate on the paid sick leave law?
- Is a written paid sick time policy required? Do I need to include specific language in the written policy?
- How can the company minimize the need to revise the handbook each time a new paid sick leave law that applies to the company is passed?
3. Stay on the Lookout for New Developments
In the ever-changing paid sick leave landscape, compliance cannot be a one-time solution, it requires a long-term strategy. Employers must remain vigilant of paid sick leave developments throughout the country as paid sick leave proposals continue to pop up in state legislatures, city councils and on ballot initiatives nationwide.
In California alone, we expect developments in Los Angeles, San Diego, and San Francisco later this year. Los Angeles currently has sick leave requirements that apply to a narrow set of employees, but the city council recently voted in favor of adopting a broader paid sick leave ordinance that could go into effect as early as this summer. In June 2016, San Diego voters will decide whether San Diego employers should be required to provide paid sick leave beyond what is required by California law and San Francisco voters will decide on the fate of Proposition E, which aims to clear up confusion between the city’s paid sick leave law and the state’s requirements. Additionally, the U.S. Department of Labor is in the process of establishing paid sick leave requirements for federal contractors to implement President Barack Obama’s Executive Order 13706.
The changes in this area of the law go both ways: paid sick leave laws are also being struck down, preempted and repealed. The following states have slowed down paid sick leave momentum within their borders by prohibiting local governments from enacting paid sick leave ordinances: Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Mississippi, North Carolina, Oklahoma, Tennessee, and Wisconsin (also repealing Milwaukee’s sick leave law, even though it passed by ballot initiative with 69 percent support). The Oregon Legislature passed its own state-wide paid sick leave law, but repealed the ordinances enacted by Eugene and Portland in the process to avoid patchwork requirements. And in late December last year, a court struck down Pittsburgh's paid sick leave ordinance.