United States: 2016 Election Infected With Paid Sick Leave

Seyfarth Synopsis: On November 8, 2016, two states — Washington and Arizona — are poised to become the sixth and seventh states in the country to pass a statewide mandatory paid sick leave law.

The noise surrounding the 2016 election's major party candidates has left the American public full of both tension and hope heading into Election Day.  While many have been focusing on Tweets, video recordings, and alleged scandals, the paid sick leave epidemic that has spread throughout the nation in recent years has quietly infected this year's election as well.  In particular, both Washington and Arizona have proposed statewide paid sick leave bills on their respective ballots.  When the Election Day dust settles, the country will not only know its Commander in Chief for the next four years, but also whether the number of statewide paid sick leave laws has increased from five to either six or seven.

The 2016 election would not be the first time a statewide paid sick leave law was passed through a ballot initiative.  In 2014, Massachusetts residents voted on and passed the state's Earned Sick Time Law.

Washington Paid Sick Leave – Initiative Measure No. 1433

  • Paid Sick Leave Accrual, Usage, and Carryover:

    • Accrual Rate:  One hour of paid sick leave for every forty hours worked.
    • Accrual and Usage Caps:  The proposal currently is silent on whether there is any cap on how much paid sick leave employees can ultimately accrue and use in a single year.  Barring any further clarification from the state, if passed, the Washington proposal would be the first paid sick leave law in the country that does not set at least an accrual or usage cap.
    • Frontloading:  While frontloading paid sick time is expressly permitted under the proposed law, it may not get rid of an employer's year-end carryover obligations.  The proposal states that providing paid sick leave in advance of accrual is permitted if the frontloading "meets or exceeds the requirements of this section for accrual, use, and carryover of paid sick leave."
    • Carryover of Unused Paid Sick Leave:  Employers would only be required to allow 40 hours of earned, unused paid sick leave to carry over at year-end.
  • Reasons for Use:  Employees would be able to use earned paid sick leave for a number of reasons, including (a) their own injury, illness, or health condition, (b) the injury, illness, or health condition of a covered family member, (c) closure of the employee's place of business or employee's child's school or place of care by order of a public official, and (d) certain absences related to domestic violence as set forth under the state's Domestic Violence Leave law.  Covered family members would include, among other relationships, the employee's children, parents, spouse, registered domestic partner, grandparents, grandchildren, and siblings.

Arizona Proposed Fair Wages and Health Families Act – Proposition 206

  • Paid Sick Leave Accrual, Usage, and Carryover:

    • Accrual Rate and Cap:  (a) Employers with 15 or more employees would be required to allow paid sick leave to accrue at least as fast as one hour for every 30 hours worked, up to 40 hours per year; (b) While the accrual rate remains the same for smaller employers, such employers would only be obligated to allow employees to accrue up to 24 hours of paid sick leave per year.
    • Usage Cap:  (a) Employers with 15 or more employees – 40 hours per year; (b) Employers with fewer than 15 employees – 24 hours per year.
    • Carryover:  The proposal states that earned paid sick time shall carry over from one year to the next, subject to the above usage cap limitations.  It is unclear from the current proposal if employers would be allowed to set a cap on how much unused sick time carries over at year-end.
    • Frontloading:  Employers would be able to get rid of their year-end carryover obligations if they (a) pay employees for unused paid sick leave at year-end, and (b) provide employees with a lump grant of sick time that is equal to the above amounts (depending on employer size).
  • Reasons for Use:  Employees would be able to use earned paid sick leave for a number of reasons, including (a) their own injury, illness, or health condition, (b) the injury, illness, or health condition of a covered family member, (c) closure of the employee's place of business or employee's child's school or place of care by order of a public official, (d) care of the employee or a covered family member when it has been determined by health authorities that the individual's presence in the community may jeopardize the health of others due to exposure to a communicable disease, and (e) certain absences related to domestic violence, sexual violence, abuse, or stalking of the employee or the employee's covered family member.
  • Covered family members would include, among other relationships, an employee's child (regardless of age), parent, spouse or registered domestic partner, grandparent, grandchild, and sibling, and any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Employers in Washington and Arizona should continue to track whether their states' respective paid sick leave initiatives have passed.  And, if either initiative is approved, employers should begin taking steps as soon as possible to ensure that they will be able to achieve full compliance by the July 1, 2017 (Arizona) and January 1, 2018 (Washington) effective dates.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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