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State and local paid sick leave law developments

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By Cindy Brockhausen and William “Bill” Kalten | July 26, 2021

Employers in states and localities with paid sick leave and earned paid time off laws should review their existing leave policies and procedures.

To date, 13 states, Washington, D.C., and over 20 localities have permanent paid sick leave (PSL) laws in effect. Additionally, three jurisdictions — Nevada; Maine; and Bernalillo County, New Mexico — have earned paid time off (EPTO) laws that are structured similarly to the PSL laws but allow employees to use leave for any reason.

The following developments have occurred since our last update:1

  • Colorado’s PSL law — the Healthy Families and Workplaces Act (HFWA) — created both temporary and permanent PSL mandates for employers. The 2020 HFWA requirement to provide employees with up to 80 hours of COVID-19 emergency PSL expired on December 31, 2020. Starting January 1, 2021, for employers with 16 or more employees (January 1, 2022, for employers with less than 16 employees) employers must provide employees with one hour of PSL for every 30 hours worked, up to an annual maximum of 48 hours. In addition, beginning January 1, 2021, employers of all sizes must immediately provide employees with up to 80 hours of public health emergency leave (PHEL) on the date a public health emergency is declared. Employees can use PHEL leave once per public health emergency. Recently issued guidance and rules clarified that PHEL applies to employers of all sizes, that part-time employees and new hires are entitled to PHEL, and that the COVID-19 public health emergency triggers the requirement to provide PHEL in 2021.
  • Dallas’ PSL ordinance was permanently enjoined by a federal district court. On March 31, 2021, the U.S. District Court for the Eastern District of Texas determined that the city’s PSL ordinance was preempted by the Texas Minimum Wage Act and was in violation of the Texas Constitution, thereby preventing the city from enforcing the PSL ordinance.
  • Nevada’s EPTO law, which allows employees to use leave “without providing a reason,” was amended to specify that earned paid leave can be used "for any use,” including to receive certain medical treatments, participate in caregiving or address other personal health-related needs. In addition, the amendment temporarily requires employers to provide two or four hours of paid leave to each employee to receive the COVID-19 vaccine(s).
  • Beginning July 1, 2022, New Mexico will require all private employers to provide paid leave that employees can use for personal illness; to take care of sick family members; for meetings at the employee's child's school or place of care related to the child’s health or disability; or for absences related to domestic abuse, sexual assault or stalking. Employees will accrue one hour of PSL for every 30 hours worked, up to 64 hours a year.
  • San Antonio’s legal quest to implement the city’s paid sick and safe leave (PSSL) ordinance — which was to take effect on August 1, 2019 — was dealt another blow after the Texas Fourth Court of Appeals affirmed a District Court’s temporary injunction preventing the PSSL ordinance from taking effect. On March 10, 2021, the appellate court reasoned that San Antonio’s PSSL ordinance was preempted by the Texas Minimum Wage Act and thus unconstitutional. The city has not indicated if it will appeal to the State Supreme Court. Like San Antonio, Austin’s PSL ordinance is also on hold amid similar legal challenges.
  • Seattle’s paid sick and safe time (PSST) ordinance was amended in light of the COVID-19 pandemic to expand the situations for which PSST can be used. First, employees who work in Seattle may now use their PSST for an absence caused by the closure of any family member’s school or place of care, regardless of whether the closure is ordered by a public official or for a health reason. Second, employees of Tier 3 businesses (250 or more full-time equivalent employees on average per week) may also take PSST if their business reduces operations or is closed for any health- or safety-related reason.

For a current listing of all the states and localities with PSL and EPTO laws, see the map below. Absent a federal mandate, changes at the state and local level are expected to continue.

Going forward

Covered employers in states and localities with PSL and EPTO laws should review their existing leave policies and procedures to determine whether they are in compliance with the laws in the jurisdictions in which they operate and adjust their employee leave policies if necessary. Federal contractors will also need to comply with Executive Order 13706 and the related regulations.

Footnote

1 See “Paid sick leave law landscape continues to evolve,” Insider, October 2020.

Authors


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