New Sick Leave Laws Create Challenges for Many Employers
On August 30, the California legislature passed the Healthy Workplaces, Healthy Families Act, which requires most employers in the state to provide a minimum of three paid sick days to covered employees. Governor Scott Brown has publicly endorsed the bill and is expected to sign it. California joins Connecticut as the second state to mandate paid sick leave for private employees, in addition to several cities, including New York City, Jersey City, Newark, Seattle, San Francisco, and Eugene and Portland, Oregon. San Diego has also recently joined the ranks of these cities, overriding a mayoral veto on August 18 to create a sick leave entitlement for employees performing work within the city, while Passaic, New Jersey, became the newest member of this cadre by passing a local sick leave law on September 2. Similar legislation has been gaining traction in cities and states across the country, and a ballot measure that would grant workers in Massachusetts a right to sick leave is scheduled for a November vote, indicating that this recent proliferation of paid leave legislation is merely the tip of the iceberg.
The new California laws illustrate the difficulty that national and regional employers face in complying with the disparate requirements imposed by these various leave laws; for many such employers, developing a company-wide sick leave policy will be either impossible or incredibly burdensome. For example, while New York City permits sick leave accrual and use to be capped at 40 hours per year, the California state law allows employee leave use to be capped at 24 hours per year, but requires employers to allow sick leave accrual of up to 48 hours. On the other hand, the recently-passed San Diego sick leave law permits employers to cap employees’ use of leave at 40 hours per year, but does not appear to allow employers to cap an employee’s accrual of leave. Conversely, San Francisco does not permit employers to limit the use of leave, and instead imposes a minimum accrual cap of 72 hours for businesses with more than 10 employees, making it possible for employees covered by the San Francisco ordinance to use over 15 paid sick days in a single year.
In many cases, these myriad state and city laws also apply different standards with respect to employee eligibility to accrue or use sick leave, under what circumstances an employer must carry employees’ accrued leave over from year to year, whether a separated employee’s leave must be reinstated upon their return to employment, and how long records detailing employees’ accrual and use of leave must be kept, among other requirements. As an additional challenge, employers who require employees to travel for business purposes or permit employees to telecommute must be especially mindful of whether their employees are performing work within any jurisdiction covered by a sick leave law.
Given the difficulties involved in crafting sick leave policies that comply with these numerous and diverse requirements, and the uncertainty surrounding many pending paid leave laws, the most appropriate course of action for many employers may be to craft local sick leave policies in the affected jurisdictions until a clearer regional or national picture emerges. Of course, the most prudent approach will always depend on the needs of each employer’s business and applicable laws; as such, Employers who must accommodate multiple sick time laws should consult with local counsel in updating their leave policies.