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The Push for Mandatory Paid-Sick Leave

New York is the latest city to implement a mandatory paid-sick-leave law. As support for such legislation grows around the country, HR professionals everywhere may want to start thinking about what their organizations would need to do in order to comply should such laws take effect in their areas.

Tuesday, April 8, 2014
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On April 1, New York took its place on the growing list of cities that have implemented mandatory paid sick leave laws.

Under the new ordinance, Big Apple businesses with 20 or more employees must offer at least five paid sick days to employees, or else be subjected to fines. Smaller businesses must provide five unpaid sick days.

The law also provides these workers with a legal right to a minimum amount of sick time for personal or family care that an employer cannot reduce or withdraw, and expands the list of relatives for whom sick time can be taken to include grandparents, grandchildren and siblings.

In signing the legislation on March 20, New York City Mayor Bill de Blasio joined a growing chorus voicing support for mandatory sick leave laws. At a press conference announcing an agreement on the bill, de Blasio described paid sick leave as "a fundamental right" that is "extraordinarily important" for employees to have.  

A recent survey from FindLaw.com -- a legal website, online attorney directory and division of New York-based Thomson Reuters Corp. -- suggests many Americans feel the same way.

FindLaw's recent poll of 1,000 Americans nationwide found 71 percent of respondents supporting mandatory sick leave laws. Just 10 percent said they were opposed to such regulations, with 19 percent indicating they were unsure or had no opinion.

In addition to New York City, the District of Columbia, Portland, Seattle and San Francisco have put mandatory paid sick leave laws in place, with more than 20 other cities and states considering the same.

"A combination of factors" seems to be behind the groundswell of support for mandatory paid sick leave legislation, says Jason Habinsky, a New York-based partner with international corporate law firm Haynes and Boone.

"Some proponents look at mandatory paid sick leave as a public health initiative, targeted at preventing the spread of illnesses in the workplace by employees who are sick or have an ill family member but are afraid to lose a day of pay," says Habinsky. "Other supporters are motivated by fairness and equality, believing that all employees should have the ability to care for themselves and their families during illness, regardless of their income."

From the average employee's standpoint, economic realities may be helping to drive the desire for paid sick time, says Mark Spring, a Sacramento, Calif.-based partner with Carothers DiSante & Freudenberger.

"Many workers have been struggling to increase their wages and take-home pay, particularly at the lower end of the wage scale," says Spring. "When banging on the door for increased wages goes nowhere, the next door to bang on is for increased benefits, particularly time off.

"Most European countries have materially greater paid time-off benefits than those in the United States," he adds. "With the economy becoming more and more of a global one, and social media being a borderless phenomenon, I think the employees, groups and politicians supporting [mandatory paid sick leave laws] are a lot more aware of what is going on in other countries. And, thirdly, many city governments have taken a much more active role in passing legislation that is more traditionally left to the federal or state governments."

Speaking of the federal government, the current political climate makes a national minimum paid sick time requirement improbable in the foreseeable future, adds Habinsky.  

"With much of the White House's political capital in this area being spent on other issues such as an increase in the federal minimum wage -- and strident opposition [to paid sick leave laws] from business interests -- it is unlikely that a national bill will pass in the near-term," he says.

Still, with more cities likely to pursue similar ordinances with regard to paid sick time, employers and HR leaders must be prepared if mandatory paid sick leave laws come to their town, says Marc Mandelman, senior counsel and co-head of Proskauer's employment law counseling and training group in New York.

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"Make sure your existing policies match up to the minimum requirements," says Mandelman. "Many of our [New York-based] clients are already providing leave that's at least as generous, or more generous, than the law requires. But with respect to part-time or temporary employees, the administration of this law can get extremely complicated."

For example, the New York law applies to any employee who works a minimum of 80 hours a year for an employer, he says.

"So you may be dealing with employees who work on a project for a couple days at a time, and then don't work for a long time. They may or may not even be called back later on. The employer has to establish systems to track and account for [sick time] accruals under this system."

For HR practitioners in cities with sick leave ordinances, "it will be important to review and revise employment handbooks and company policies to ensure compliance with these new laws," adds Habinsky.

"It also will be important to consult professionals with knowledge of the laws in each of an employers' workplace localities, as the requirements of these existing laws vary widely, with new ones on the horizon."

In New York, for example, employers will be required to provide a written notice of the right to paid sick leave to both new and current employees, he says, adding that employees may carry over unused sick leave to the following year, unless the employer chooses to pay for the unused sick time.

Employees may also use sick time to care for family members, says Habinsky, "but such rights will also vary by locality.

"Some laws also require an employer to keep strict records of compliance, such as in New York, where sick time will accrue based on hours worked, and must now be tracked and calculated by HR. A violation of these laws may expose employers to civil liability and governmental investigation, so meticulous compliance is critical."

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