Paid Sick Leave Compliance and Employer Best Practices

Keeping Up with Paid Sick LeaveCompliance and Employer Best Practices

April 2015

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Agenda Introductions and Goals Where We Were Last Year What’s Changed Since Then The Gory Details How Employers Are Managing Paid Sick Leave

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Introduction and Goals Introduction

Geoff Simpson, Director, Sales and Marketing, Presagia Michael Soltis, JD, LLM, Office Managing Shareholder and

Litigation Manager, Jackson Lewis PC Teri Weber, Partner and Senior Consultant, Spring

Consulting Group LLC

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Where We Were Last Year One State Paid Sick Leave (Connecticut) Seven Paid Sick Leave Jurisdictions (Washington, DC,

Jersey City, Newark, New York City, Portland, San Francisco, and Seattle) One hotel specific ordinance in Los Angeles (October 2014)

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It Looked Like This…

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… And Now Paid Sick Leave Looks Like This

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… And Then There Are the State Leave Laws

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What’s Changed Since Then Paid Sick Leave has continued to expand

From one state to three states (California, Connecticut, Massachusetts)

From seven jurisdictions to eighteen; many in CA and NJ― Bloomfield, NJ― East Orange, NJ― Eugene, OR― Irvington, NJ― Jersey City, NJ― Montclair, NJ― Newark, NJ― New York, NY― Oakland, CA― Patterson, NJ― Portland, OR

Leave Map

― Passaic, NJ― Philadelphia, PA― San Francisco, CA― Seattle, WA― Tacoma, WA― Trenton, NJ― Washington, DC― Los Angeles (hotel specific)― Long Beach (hotel specific)― San Diego, CA (on hold; vote in June 2016)

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Why This Is An Issue According to 2014 BLS Statistics:

65% civilian workers have Paid Sick Leave

However, break it down and…. 52 percent of workers in small establishments have (<100) 72 percent in medium and large establishments have (>100)

This means that over 40 million workers have no paid sick leave!

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How The U.S. Compares

50 – Day Cancer

5 – Day Flu

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Why This Is An Issue 1993 – Family and Medical Leave Act had gaps that

needed to be filled: Lacked pay for leave Required specific conditions be proven for sick leave

2004 – Healthy Families Act – Rep. Rosa DeLauro (‘05, ‘07, ’09, ‘11, ’13)

2004 – The Balancing Act – Rep. Lynn Woolsey (‘05, ‘07, ’09, ’11)

In his 2015 State of the Union, Obama stated: “Send me a bill that gives every worker in America the opportunity to earn seven days of paid sick leave.”

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The Gory DetailsState Level

Three states have paid sick time laws (CA, CT and MA) CA: Passed by the legislature on August 29, 2014. The

Governor signed it into law on September 9, 2014 and the law will take effect in July 2015

CT: Signed by the Governor July 1, 2011. The law was effective January 1, 2012

MA: Statewide ballot was approved on November 4, 2014. The law will take effect July 1, 2015

Paid Sick Leave is separate and distinct from Paid Family Leave available in California, New Jersey and Rhode Island. These leaves may overlap or have

similar parameters.

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The Gory DetailsState Level - Entitlement

California offers up to 24 hours a year (1 hour for every 30 hours worked) to workers employed in CA for 30 or more days within a year In-home supportive care and flight deck/cabin crews are exempt Employer under a CBA may be exempt

Connecticut offers up to 40 hours a year (1 hour for every 40 hours worked) to hourly workers working for a business with 50 or more employees Manufacturers and one nationally chartered non-profit as well as temporary

and day laborers Massachusetts offers up to 40 hours a year (1 hour for every

30 hours worked) to workers employed in MA Businesses with fewer than 11 workers receive only unpaid sick time

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The Gory DetailsState Level - Eligibility

Accrual begins at commencement of employment In CA, time cannot be used until 90th day of employment In CT, time cannot be used until the 680th hour of employment In MA, time cannot be used until the 90th calendar day of

employment All three states allow the time to be used to care for

children and spouses CA and MA also allow for parents and parents of a spouse CA extend the definitions further to include grandchildren/

grandparents and siblings

All states allow time to be used for domestic violence with CT also referencing sexual assault and CA expanding further to reference public health emergencies.

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The Gory DetailsState Level - Carryover

All states have a layer of requirements for carryover Employers in CA and CT are able to avoid the carryover

requirements if they provide “full” paid sick entitlement at the start of the year

California Connecticut Massachusetts

Carryover requirement All unused time Up to 40 hours Up to 40 hours

Maximum accrual 48 hours/year 40 hours/year 40 hours/year

Usage limit per year 24 hours/year 40 hours/year 40 hours/year

If an employee is rehired in CA within 12 months, they are entitled to sick time available at the time of separation unless paid out.

In MA, if an employee misses time but arranges to make up the time within the pay period, the employee does not need to use accrued sick.

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The Gory DetailsState Level - Notice

Employers must provide some degree of notice in all states CT references an individual notice or posting of employee

rights MA references an individual notice as well as posting of

employee rights CA adds a layer of complexity by requiring employees to

inform employees of hours available on their wage payment

Employee Notice

California Connecticut Massachusetts

Foreseeable Leave “Reasonable” 7 day notice “Good Faith Effort…”

Unforeseeable Leave As soon as practical As soon as practical No Provision

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The Gory DetailsState Level - Certification

Certification requirements for paid sick leave are vague CA lacks a certification provision except to say the employer

may require the employee to provide a written certification verifying time was used for the intended purpose

CT and MA allow for certification if 3 consecutive workdays are missed

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Covered Employers All employers: San Francisco, NJ cities (with limited

exceptions), Washington, D.C., Portland

Employers with 50+ in-state employees (CT); 5 or more employees (NYC)

Tiered number of employees: larger employers must provide paid leave; smaller provide unpaid leave (Portland, OR)

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Eligible Employees Based on actual time worked in the city per year:

“Occasional” workers who work 240+ hrs/yr in the city (Seattle, Portland)

80+ hrs/yr in city (NYC and New Jersey cities) 30 days working in CA 2 hours in one week in calendar year (San Diego, Oakland)

Relative time worked in the city: Employees must either spend at least half of their time in D.C. or are based in D.C., and don’t spend more than half of their time working elsewhere

Only non-exempt “service workers,” those within 64 BLS classifications (CT)

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Accrual Rules Accrual Rate:

Majority: 1 hr/30 hours worked (1/30) Others: 1/40 (CT); tiered rates based on employer size (the

more employees, the lower the number of hours to accrue an hour)

When does accrual begin and when can it be used? Majority rule: date of hire/after 90 days of employment Others: use after 120 days (NYC); 180 days (SEA); 680 hrs (CT)

Max accrual/annual cap Majority rule: 40 per year Others: San Francisco, Oakland (72); size based maximums

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Family Member Definitions Siblings, grandparents, grandchild Siblings in law, “committed relationships” - D.C. Domestic partner – New York City and Portland, OR. Spouse, civil union partner or domestic partner of

grandparent – NJ cities A person to be named annually if no spouse or

domestic partner (SF0, Oakland)

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Reasons for Leave Beyond the “Usual” Domestic violence, sexual assault, stalking: MA, D.C.,

Seattle, CA, CT, Portland, Eugene Public health emergency at work or a child’s school:

Seattle, NYC, Jersey City, Portland, NJ cities Death of a family member (Tacoma, WA)

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Carryover Requirements Majority rule: All accrued but unused time Others:

All unless paid out at year end – NJ cities (with certain exceptions in Jersey City)

All unless employer frontloads the annual requirement (Portland, OR, CT, SEA, CA)

Up to 40 hours, unless employer pays out at year end AND frontloads the annual maximum accrual (NYC)

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Sick Leave Abuse Portland, OR Protected Sick Time Ordinance defines it

as “repeated use of unscheduled sick time on or adjacent to weekends, holidays, vacation, or pay day, regardless of the number of consecutive days.”

The San Francisco Paid Sick Leave Ordinance defines a “pattern of suspected abuse” by providing examples such as an absence when an employee’s vacation request was denied; when an employee is scheduled for an undesirable shift; and on Mondays or Fridays or days following a holiday.

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Where the Wild Things Are! Determining pay rate for those on other than hourly

programs Does “child” include adult child and, if so, under what

circumstances? Bereavement leave creates “womb to tomb” leave

coverage Adjunct professors in Philly need a better lobbyist Providing notice every payroll period

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Where the Wild Things Are! Requesting personal certification for each use of PSL Government certification that current policy satisfies

PSL law PSL is a floor for leave, not a ceiling Integrating PSL with other leave laws and paid leave

programs such as STD and workers compensation Think more! All PSL laws encourage employers to

provide more PSL than required!

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How Are Employers Managing Employers in this room are likely managing very well

compared to others; awareness is critical A good place to start: sign up for advisor/vendor blogs The difficult part: actually reading them

Recently most employers have been in a reactionary position; a pro-active approach is best A good place to start: set ownership at your firm, consider

your structure and how you want these types of absences managed

The difficult part: controlling communications and setting policies

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How Are Employers Managing Some view paid sick as an outlier to their program; one-

offs will not work long term A good place to start: consider sick leave as part of your

integrated program ― Durations are short but this data will support your overall health and

productivity initiatives― Accruals can be tricky…but consider your options ― If our core integrated providers will not manage accruals, other options

exist but there are trade offs The difficult part: Changing behavior of employees,

supervisors and HR― Set some visions for where you want to be in 5 years knowing the

landscape WILL change

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Paid Sick Leave Resources 2015 Compliance Conference Paid Sick Leave Grid Check out our blogs:

http://www.disabilityleavelaw.com/ http://www.presagia.com/category/enterprise-dashboard/ent

erprise-blog/

http://springgroup.com/knowledge-center/insight-blog/

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Questions?

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Teri Weber, ACIPartner

teri.weber@springgroup.com

Mike Soltis, JD, LLMManaging Partner and Litigation Manager

soltism@jacksonlewis.com

Geoffrey SimpsonDirector, Sales and Marketing

gsimpson@presagia.com

Thank YouSend us an email for a copy of the 2015 Paid Sick Leave Grid!