With Paid Leave Laws Expanding, You Need to Update Your Attendance Policies

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Nov 27, 2018

Minnesota might not stand out as a trendsetter (plaid shirts aside), but three cities have recently jumped on the national trend of paid sick leave laws. Last May, Duluth joined its counterparts Minneapolis and St. Paul in passing an ordinance requiring employers to provide paid sick leave. As a new legislature takes the helm in January, state lawmakers will likely consider making these requirements apply to all Minnesota employers.

For employers in any state, the passage of a sick leave ordinance in a major metro area could signal broader statewide requirements down the road. For example, San Francisco passed the first sick leave law 11 years ago in 2007; California followed suit in 2015. Since then, 10 states have passed their own paid sick leave measures. In some locations, such as New Jersey, state law preempts local sick leave ordinances, which provides a set of consistent rules for employers. In other states, such as Washington and Maryland, lawmakers impose statewide requirements while leaving local ordinances intact.

The converse is sometimes true. In Texas, state lawmakers have filed suit to prevent an ordinance in Austin from taking effect, and vow to pass a statewide preemption measure in 2019 to prevent any local sick leave law from taking effect.

Paid leave laws expanding

One thing is clear — mandatory paid leave is expanding. More employers will find themselves within a jurisdiction that requires some form of paid sick and/or family leave for employees. Most laws require employees to accrue paid leave based on hours worked and use it for specific purposes, ranging from the employee’s own illness to caring for a child whose daycare unexpectedly closed, to dealing with the consequences of domestic violence.

Increasingly, paid leave protections are expanding into the family realm so that paid sick leave and/or mandatory temporary disability programs cover parental bonding time. For example, Massachusetts (which already has a paid sick leave law) passed one of the most employee-generous paid family and medical leave programs in the country this year, which will be funded by a combination of payroll deductions and employer contributions. The law will guarantee up to 26 weeks of paid leave, and even covers former employees and self-employed contractors.

Significantly, the law will create restoration rights and a rebuttable presumption of retaliatory intent following any “negative” change in the seniority, status, employment benefits, pay, or other terms or conditions of employment occurring any time during or in the six-month period following leave or participation in an investigation related to an employee’s rights under the law. Some of these more stringent requirements are finding their way into paid sick and family leave proposals elsewhere.

What employers should do

Employers often have just a few months of lead time between the passage of a paid sick leave or family leave law and the effective date. Although there are more than 30 states and local governments with these laws already in effect, compliance guidance is hard to find. While some states have promulgated formal rules, many cities have issued ever-changing “FAQ” guides that provide inconsistent advice and leave employers scratching their heads.

But there are a few requirements and common pitfalls that apply to most sick leave laws. Here are steps HR leaders should be taking now:

  • Review company attendance policies to ensure that any mandatory notice periods (i.e., 2 weeks’ notice for a planned doctor’s appointment) do not violate the sick leave law.
  • Update hiring notices and workplace posters.
  • Educate supervisors on how to spot fraud or abuse without inadvertently retaliating against employees for using paid leave. Most laws prevent employers from seeking any verification unless an employee has been absent three consecutive working days.
  • Review payroll practices to ensure employees are receiving the proper rate of pay for the use of sick leave, and that paystubs include any required information.
  • Develop a consistent tracking method to ensure that employees accurately accrue time, and that any time used is properly credited and deducted from the balance.

Quandary for multistate employers

A frequent challenge for multistate employers includes tackling inconsistent obligations across jurisdictions. These employers must make a judgment call, whether to adopt a general provision that is universally compliant, or tailor provisions to employees in each relevant location.

For example, Minneapolis requires employees to roll over all accrued, unused sick time into the following year, but employers may cap the total at 80 hours. The state of Washington allows employees to roll over 40 hours, but an employer may not impose any caps on accrual or use throughout the year. These two provisions cannot be reconciled without giving employees unlimited leave. So, an employer in both locations must tailor the policy for employees in each location.

With so many laws across the country, a multistate employer simply cannot draft a “universal” sick leave policy that complies with each one. But an employer can make some choices to adopt more general provisions in an effort to balance administrative ease with legal compliance. Many companies strike this balance between adopting some one-size-fits-all provisions and carving out some location-specific provisions.

Looking ahead

Employers can [clickToTweet tweet=”Employers should expect the paid leave trend to spread in 2019.” quote=”Employers can expect to see the paid leave trend spread from the coasts to interior states, particularly as paid leave becomes a ballot issue”] from the coasts to interior states, particularly as paid leave becomes a ballot issue directly before voters or before metro city council bodies. For example, many statewide measures were adopted by a ballot initiative, as was the case in Arizona and Washington in 2016.

In Michigan, lawmakers adopted a paid sick leave bill in an effort to keep it off the November ballot, and have introduced measures to roll back some of the law’s requirements. It seems likely that the lame-duck legislature will keep some version of the bill intact, which would make Michigan the eleventh state to require paid sick leave.

Lawmakers are making paid leave programs the norm, not a distinguished benefit. Employers would be smart to take stock of this trend and prepare to adapt appropriately.

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