Aaron Kolquist

The Rise of Paid Sick Leave Laws

Paid sick leave laws have received increased focus in recent years as proponents push for such laws to be implemented.  While paid sick leave laws are unlikely to gain traction on a federal level, certain states, and especially municipalities, are taking action to pass laws that will require most employers to offer paid sick leave to employees, including for family care and absences resulting from domestic violence, sexual assault, and stalking.  The City of Duluth has already taken steps in this direction.  As a result, employers must be cognizant of the states and cities in which they have employees and ensure that their policies stay compliant with new requirements.

The push for paid sick leave laws has largely occurred at the state and local levels, with San Francisco enacting the first paid sick leave ordinance in 2007.  The only federal move in this direction came when President Obama issued Executive Order 13706, which requires federal contractors to offer paid sick leave to employees working on federal government contracts.  Otherwise, there are no federal laws mandating employers to provide paid sick leave and it seems unlikely that any such federal legislation will be passed under the Trump Administration.

A variety of approaches have been taken with regard to paid sick leave laws at the state level.  Some states have implemented state-wide, mandatory paid sick leave laws.  Of these states mandating paid sick leave, some allow counties and municipalities to enact their own laws which build on the minimum standards set by the state, but others require all localities to adopt uniform state standards.  Several other states, including Wisconsin, have effectively preempted counties and municipalities within the state from enacting paid sick leave measures.  In other words, no counties or municipalities in Wisconsin or other states taking the preemption approach may pass laws of their own which require employers to provide paid sick leave.

Then there are states like Minnesota, which have failed to pass state-wide legislation either mandating or curtailing paid sick leave.  A number of counties and cities within these states have taken it upon themselves to require employers to provide paid sick leave for employees within the jurisdiction.  Minneapolis became the first city in Minnesota to approve a paid sick leave ordinance in mid-2016 and St. Paul followed suit shortly thereafter.  The City of Duluth has appointed a task force which will study paid sick leave issues in Duluth and provide recommendations to the City Council.

Under the Minneapolis and St. Paul ordinances, any individual employed by a qualifying employer, including temporary employees and part-time employees, who performs work within the geographic boundaries of the city for at least eighty (80) hours in a year for that employer is considered a covered employee.  Employees will accrue one (1) hour of sick and safe time for every thirty (30) hours worked, up to a maximum of forty-eight (48) hours in a year, unless the employer implements a higher amount.  Employees are allowed to carry over accrued but unused sick and safe time into the following year, but the total amount of accrued sick and safe time may not exceed eighty (80) hours at any time, unless an employer implements a higher amount.  Employees may use paid sick and safe time, as it is accrued, beginning ninety (90) calendar days after commencement of their employment.  Further, employers may “front-load” sick and safe time by providing at least forty-eight (48) hours of leave following an employee’s initial ninety (90) days of employment for use during the first calendar year, and by providing at least eighty (80) hours of leave at the beginning of each subsequent year.  There are other technical elements to these laws with which employers should become familiar.

One key difference between the Minneapolis and St. Paul ordinances is that Minneapolis exempts small employers (i.e., employers with five or fewer employees), only requiring such small employers to provide unpaid sick and safe leave.  Another difference is the private right of action for retaliation claims under the St. Paul ordinance, not found in the Minneapolis ordinance.  In other words, an employee in St. Paul may file a court complaint stating that his or her employer retaliated against them for exercising rights under the sick and safe time ordinance.  If the employee-plaintiff wins, they are entitled to recover their attorneys’ fees.  As a third difference, St. Paul is allowing employers with twenty-three (23) or less employees to provide unpaid leave until January 1, 2018 and then paid leave thereafter.  Minneapolis employers and larger St. Paul employers, on the other hand, must implement paid sick and safe time policies beginning on July 1, 2017, which is when both ordinances become effective.

As they are written, both the Minneapolis and St. Paul ordinances apply to outside-the-city employers whose employees occasionally work within those cities.  The Minneapolis ordinance has been challenged on this ground, however, and Hennepin County Judge Mel Dickstein issued a temporary injunction that prevents application of the ordinance to outside employers whose employees work within Minneapolis, at least not for now.  Until all legal issues are settled, employers located inside Minneapolis should plan to comply with the ordinance, and outside companies whose employees work within Minneapolis should track the situation closely, as they may still be regulated under the ordinance depending on how the courts rule on the issues.

Ultimately, the patchwork of different laws in different cities and different states is posing challenges to multi-city and multi-state employers from a policy compliance standpoint.  Employers must be aware of the locations in which they employ people and continually ensure that they comply with all legal requirements in each jurisdiction, including with employee notice, poster, pay stub, record maintenance, and other various requirements.  To plan for the impacts of mandatory paid sick leave laws and to explore all of your business’s options, you should consult with a knowledgeable labor and employment law attorney.

*** DISCLAIMER: This article should not be deemed legal advice. You should always consult with an attorney about your specific circumstances and legal rights and obligations. ***

Aaron Kolquist is an attorney with Fryberger, Buchanan, Smith & Frederick, P.A., practicing primarily in the business, corporate, and labor & employment areas.