States have begun to enact paid sick or family leave laws, but for employers, complying with many separate paid leave experiments means higher compensation costs, greater administrative complexity and added scheduling uncertainty.  

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Mandatory Paid Leave Part 1: Compliance Hodgepodge

Tue May 3, 2016

Webster’s Dictionary defines “hodgepodge” as a heterogeneous mixture or jumble—exactly what many employers face in trying to keep up with some 30 distinct state and municipal paid leave mandates.

According to the National Conference of State Legislatures (NCSL) California, Massachusetts, New Jersey, Rhode Island, Oregon and Connecticut, as well as the District of Columbia— and at least twenty cities, including San Francisco, Seattle, New York, Philadelphia and Pittsburgh, have enacted laws that require employers to provide paid sick or family leave.

In evaluating this state and local paid leave smorgasbord employers are reminded of U.S. Supreme Court Justice Louis Brandeis’ observation that the states are the “laboratories of democracy.” But for employers, complying with many separate paid leave experiments means higher compensation costs, greater administrative complexity and added scheduling uncertainty.

Making sense of the paid leave hodgepodge

First, there are actually two distinct and overlapping governmental time-off mandates— paid family leave to care for a family member; and paid sick leave for an employee’s own illness.

Four states, California, Rhode Island, New Jersey and recently New York, offer partially-paid family leave, funded by an employee-paid payroll tax administered through state disability programs. Last month San Francisco mandated up to six weeks of fully-paid leave for parents to care for newborns.

In addition, Connecticut, California, Massachusetts, Oregon, the District of Columbia and a number of municipalities require employers to provide paid sick leave for employees.

In trying to make sense of so many conflicting state and local laws employers can start by asking some questions:

  • How is eligibility for paid sick leave determined? Are part-time as well as full-time workers eligible? Employee eligible after working 30 days? Or after working 80 hours? 40 hours? State and local laws differ widely on this question.
  • How many employees must an employer have to be covered by the law? 24 employees? 10? Only 5?
  • Can an employee’s paid sick time be used to care for a family member? And how does a particular law define family member? Children and spouse only? What about parents? Grandparents? Grandchildren? Siblings? In-laws? Same-sex partners? Here again, jurisdictions interpret this question differently.
  • At what rate do workers earn paid sick time under a state or local law? 1 hour of paid leave for every 40 hours worked? Or for every 30?
  • What is the maximum amount of paid sick time that an employee can earn each year? Up to 40 hours? Or 48 hours? Even 72 hours?
  • Can an employer cap the number of paid leave hours an employee can use during a year? For example, no more than 24 hours?
  • When do workers start to earn paid time off and when can they use that time? Earn sick leave beginning with commencement of employment? Start using after the 90th day of employment? After the 120th day? Or may an employee use paid sick leave as it is earned? Does a state or local law specify the minimum increment of time that an employee may use paid sick leave—half-day? One hour? Fraction of an hour? Are there any rules relating to employee advance notice of leave?
  • How much unused paid sick leave can an employee carry-forward to the following year? 72 hours? 40 hours? Only 24 hours?
  • Can an employee bring a private right of action against an employer alleging a violation of the law?

A New York-based work and family legal center offers a helpful list of questions about state and local paid sick leave laws.

Obviously an almost infinite variety of permutations characterizes state and local paid sick leave laws. And employers understand that momentum is building for more jurisdictions across the country to enact similar laws. Indeed, the Obama Administration has issued an executive order which will require all federal contractors to provide up to seven days paid family leave.

The reality is that mandatory paid leave is proliferating in jurisdictions across the nation. And employers will need to come into compliance with laws in every jurisdiction where they have eligible employees.  Part 2 of this blog will offer some suggestions for staying ahead of the compliance curve on this hodgepodge of state and local paid leave mandates.