If Pain, Yes Gain – Part 127: As Election Looms, Ballot Initiatives Could Bring Paid Sick Leave To Alaska, Missouri, And Nebraska

What You Need to Know:

• Paid sick leave initiatives are on the ballot and up for vote in three states that don't necessarily jump off the page as home grounds for a potential paid sick leave mandate. These states include Alaska (“Ballot Measure No. 1”), Missouri (“Proposition A”), and Nebraska (“Initiative 436”).
• If constituents in the respective states pass the ballot measures during next week's election, the paid sick leave mandates will go into effect on the following dates: (a)  Alaska – effective July 1, 2025; (b)  Missouri – effective May 1, 2025; and (c) Nebraska – effective October 1, 2025.

Paid Sick Leave Laws – Background.

Currently, there are 19 states, plus Washington D.C., with either a statewide paid sick leave or paid time off law on the books.¹ A number of these states have experienced recent paid sick leave activity, including notable amendments in California, Connecticut, Massachusetts, Michigan, and Minnesota.

If the three ballot initiatives in Alaska, Missouri, and Nebraska receive sufficient votes during the November election, they will join a growing and constantly evolving list of paid time off mandates that impose complicated compliance challenges on both intrastate and multi-state employers.

Paid Sick Leave Ballot Initiatives – Alaska, Missouri, and Nebraska.

Here are some highlights from the paid sick leave ballot initiatives up for a vote in Alaska, Missouri, and Nebraska:

• Employer Coverage:

• • Alaska: Ballot Measure No. 1 does not include its own definition of “employer” nor does it base paid sick leave coverage on employee headcount.
  • Missouri: Proposition A defines “employer” as any person acting directly or indirectly in the interest of an employer in relation to an employee, excluding the United States Government and political subdivisions of Missouri. As proposed, the ballot initiative does not base employer coverage on employee headcount.
  • Nebraska: An employer is subject to Initiative 436 if they employ one or more employees, regardless of whether they are an individual, partnership, limited liability company, association, corporation, business trust, legal representative, or organized group of persons. However, the United States and the State of Nebraska, including any agencies, departments, or political subdivisions, would be excluded from coverage under the potential paid sick leave mandate.
• Employee Eligibility:
  • Alaska: Ballot Measure No. 1 does not include explicit employee eligibility requirements. However, employees subject to the federal Railroad Unemployment Insurance Act are exempt from receiving paid sick leave benefits. In addition, Ballot Measure No. 1 notes several categories of individuals who appear to be exempt from coverage under a possible future Alaska paid sick leave mandate, including but not limited to, certain apprentices; individuals engaged in nonprofit activities of religious, charitable, cemetery, or educational organization; part-time employees under 18 years of age; taxicab drivers; and certain students.
  • Missouri: Proposition A states that employees, defined as individuals employed in Missouri by an employer, will be covered by a potential forthcoming Missouri Paid Sick Leave Law. However, there would be various exclusions, including but not limited to the following: those employed by charitable, religious, or nonprofit organizations; those who stand in loco parentis  to foster children in their care; resident or day camp employees; employees who provide educational services in lieu of tuition, housing, or educational fees; employees who work occasionally on a private residence; baby-sitters; railroad employees; golf caddies and newsboys; certain government employees; retail or service employees whose businesses make less than $500,000 per year; incarcerated persons; and certain publication / newspaper employees.
  • Nebraska: Any individual employed by an employer will be eligible for paid sick leave per Initiative 436. There are exclusions for individuals who work in Nebraska for fewer than 80 hours per calendar year and those subject to the federal Railroad Unemployment Insurance Act.
• Covered Reasons for Use:
  • Alaska: Ballot Measure No. 1 would permit use of paid sick leave for:
    • An employee's own mental or physical illness, injury, or health condition; need for medical diagnosis, care, or treatment; or need for preventative medical care;
    • Care or assistance to a family member relating to mental or physical illness, injury, or health condition; need for medical diagnosis, care, or treatment; or need for preventative medical care; and
    • Absence necessary due to domestic violence, sexual assault, or stalking if the leave is to permit the employee to obtain for themselves or a family member medical or psychological attention, services from a victim's aid organization, relocation, or legal services.
  • Missouri: Proposition A would allow eligible employees to use available paid sick leave for the following reasons:
    • The employee's own mental or physical illness, injury, or health condition; need for medical diagnosis, care, or treatment; or need for preventative medical care;
    • Care of a family member who has a mental or physical illness, injury, or health condition; who needs medical diagnosis; or who needs preventative medical care;
    • Closure of the employee's place of business by order of a public official due to a public health emergency; need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency; or need to care for oneself or a family member when it has been determined by health authorities that the presence of the individual in the community may jeopardize the health of others due to exposure to a communicable disease; and
    • Absence necessary due to domestic violence, sexual assault, or stalking if the leave is to permit for medical attention (physical or psychological injury); services from a victim services organization; counseling; relocation; or legal services for the employee or the employee's family member.
  • Nebraska: Nebraska Initiative 436 would provide paid sick leave for the following reasons:
    • The employee's own mental or physical illness, injury, or health condition; need for medical diagnosis, care, or treatment; or need for preventative medical care;
    • Care of a family member who has a mental or physical illness, injury, or health condition; who needs medical diagnosis; who needs preventative medical care; or, in the case of a child, to attend a meeting necessitated by the child's mental or physical illness at a school or place of care; and
    • Closure of the employee's place of business by order of a public official due to a public health emergency; need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency; or the need to self-isolate or care for a family member when it has been determined by health authorities that the presence of the individual in the community may jeopardize the health of others due to exposure to a communicable disease.
• Family Members:
  • Alaska: Alaska Ballot Measure No. 1 defines family member as: spouse; another person cohabitating with the person in a conjugal relationship (that is not a legal marriage); a child, including step or adoptive; a parent, sibling, grandparent, aunt, or uncle; a parent or sibling of the employee's spouse; a domestic partner; a foster child, legal ward, or person to whom the employee stands in loco parentis; a foster or adoptive parent, legal guardian, or person who stood in loco parentis  when the employee was a minor child; or any other individual related by blood or whose close association is the equivalent of a family relationship.
  • Missouri: Proposition A defines family member as including the following individuals: a biological, adopted, or foster child, stepchild, legal ward, child of a domestic partner, or child to whom the employee stands in loco parentis or stood in loco parentis when said child was a minor, regardless of age; a biological, foster, step, or adoptive parent or legal guardian of the employee or employee's spouse or domestic partner; a person who stood in loco parentis to the employee, employee's spouse, or domestic partner when they were a minor child; a legal spouse, domestic partner, or individual with whom the employee is in a continuing social relationship of a romantic or intimate nature; a grandparent, grandchild, or sibling (whether adoptive, foster, step, or biological) of the employee, employee's spouse, or domestic partner; or a person for whom the employee is responsible for providing or arranging health or safety-related care.
  • Nebraska: In Nebraska, the definition of family member would include: a biological, adopted, or foster child, stepchild, legal ward, or child to whom the employee stands in loco parentis, regardless of age; a biological, foster, step, or adoptive parent or legal guardian of the employee or employee's spouse; a person who stood in loco parentis to the employee or employee's spouse when they were a minor child; a legal spouse; a grandparent, grandchild, or sibling (whether adoptive, foster, step, or biological) of the employee or employee's spouse; any other individual related by blood; or any other individual whose close association is the equivalent of a family relationship.
• Accrual:
  • Alaska: Ballot Measure No. 1 would allow employees to accrue a minimum of one hour of paid sick leave for every 30 hours worked up to an annual accrual cap of 40 or 56 hours depending on employer size. Specifically, the 40-hour annual accrual cap would apply to employers with fewer than 15 employees, while the 56-hour annual accrual cap would apply to employers with 15 or more employees.
  • Missouri: Proposition A would allow all employees to accrue a minimum of one hour of earned paid sick leave for every 30 hours worked. Proposition A is silent on whether employers would be permitted to establish a cap on accrual.
  • Nebraska: All Nebraska employees would accrue a minimum of one hour of earned paid sick leave for every 30 hours worked. Accrual would be capped at 40 hours of paid sick leave per year for employees of small businesses, and 56 hours per year for employees of an employer that is not a small business. According to Initiative 436, a “small business” is defined as one with fewer than 20 employees during a given week—including full-time, part-time, or temporary employees. Employers that maintain 20 or more employees on their payroll in each of 20 or more calendar weeks in the current or proceeding calendar year are not considered a “small business.”

• Frontloading:

• • Alaska: Ballot Measure No. 1 does not appear to specify parameters regarding frontloading.
  • Missouri: Proposition A would permit an employer to provide all earned paid sick leave that an employee is expected to accrue in a year at the beginning of the year. It is unclear whether such a frontload would suffice to avoid accrual and/or year-end carryover obligations.
  • Nebraska: Per Initiative 436, Nebraska employers may provide all paid sick leave that an employee is expected to accrue in a year at the beginning of the year. It is unclear whether such a frontload would suffice to avoid accrual and/or year-end carryover obligations.
• Year-End Carryover:
  • Alaska: Alaska Ballot Measure No. 1 states that unused paid sick leave will carry over to the following year. Regardless of carryover balances, employers are not required to allow an employee to exceed the applicable usage cap, as provided below.
  • Missouri: Missouri Proposition A provides that up to 80 hours of earned unused sick leave will carry over at year end. However, this does not require an employer to permit an employee to exceed the usage caps discussed below. Relatedly, Proposition A discusses a potential payout alternative to year-end carryover.
  • Nebraska:  NebraskaInitiative 436 permits accrued paid sick leave to be carried over to the following year, without any prescribed limitations. Relatedly, Initiative 436 discusses a potential payout alternative to year-end carryover.
• Usage Caps:
  • Alaska: Employees of employers with 15 or more employees are not entitled to use more than 56 hours of paid sick leave per year. Employees of employers with fewer than 15 employees are not entitled to use more than 40 hours of paid sick leave per year. Both of these usage caps are subject to employer discretion, should it prefer to set a higher limit.
  • Missouri: Proposition A would set a 56-hour annual usage cap for employees of employers with 15 or more employees, and a 40-hour annual usage cap for employees of smaller employers. Employers have discretion to be more generous. To determine an employer's number of employees, all employees performing work in the State for the employer for compensation on a full-time, part-time, or temporary basis must be counted.
  • Nebraska: Initiative 436 provides that employees of small businesses cannot use more than 40 hours of paid sick leave in a year. Employees of employers that do not constitute not small businesses may not use more than 56 hours of paid sick leave per year.

Consistent with the existing patchwork of state and local paid sick leave and paid time off laws currently in effect, the Alaska, Missouri, and Nebraska ballot initiatives also touch on an array of additional topics, including, but not limited to, documentation, employee notice to employers, new hire usage waiting periods, notice and posting requirements, recordkeeping, replacement employees, employee transfers, successor employers, rate of pay, increments of use, and use of non-sick paid time off for paid sick leave compliance.

What Should Employers Do Next?

With the November 2024 election mere days away, employers should keep tabs on the results coming out of Alaska, Missouri, and Nebraska and whether constituents vote to pass the States' respective paid sick leave ballot initiatives. If passed, employers should:

• Review existing leave policies and practices to ensure compliance with the new law(s), including related attendance, conduct, anti-retaliation, and discipline policies and practices.
• Train supervisory and managerial employees, and HR on the new requirements.
• Monitor each State's respective Department of Labor website for the release of administrative guidance and other materials on employers' paid sick leave compliance obligations.

Footnote

1. Today, the states that have enacted a statewide general paid sick leave or paid time off mandate include: (1) Arizona; (2) California; (3) Colorado; (4) Connecticut; (5) Illinois (PTO law) (effective 1/1/2024); (6) Maine (PTO law); (7) Maryland; (8) Massachusetts; (9) Michigan; (10) Minnesota (effective 1/1/2024); (11) Nevada (PTO law); (12) New Jersey; (13) New Mexico; (14) New York; (15) Oregon; (16) Rhode Island; (17) Vermont; and (18) Washington. In addition, (19) Virginia has a statewide paid sick leave law that applies only to certain home health workers. There also is a paid sick leave mandate in (20) Washington, D.C.. Further, there are more than two dozen municipalities with paid sick leave or paid time off mandates in the United States.

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.