Navigating State and Local Leave Laws: Practical Tips for Multi-State Employers

By Dan Prokott, Faegre Baker Daniels LLP

Published on Nov. 2, 2018

Many leave laws affecting employers have been enacted in states and cities across the country in the last few years. This trend is expected to continue (at least in certain states and many larger cities) in the coming years.

There are 11 states (Arizona, California, Connecticut, Maryland, Massachusetts, Michigan, New Jersey, Rhode Island, Oregon, Vermont, and Washington), plus the District of Columbia and the Commonwealth of Puerto Rico, that have passed statewide paid sick leave laws.

In addition, more than 30 local jurisdictions have passed paid leave laws across the country. Developments in 2018 include:

1. Sick and safe leave ordinances passed in Duluth, MN (effective January 1, 2020), San Antonio, TX (effective August 1, 2019), and Austin, TX (scheduled to be effective October 1, 2018, but temporarily suspended as of August 17, 2018, pending an appeals court review)
2. Michigan passing a statewide paid sick leave law (effective April 1, 2019)
3. 13 previously enacted local paid sick leave laws in New Jersey becoming preempted by a new statewide paid sick leave law as of October 29, 2018

It is expected that additional state and local paid sick leave laws will be passed in the coming years. In addition, more states may join California, New Jersey, New York and Rhode Island by passing paid family medical leave laws.

Multi-state employers must be aware of these state and local laws and take steps to ensure legal compliance. Here are three practical tips:

Understand the Nuances of State and Local Paid Sick Leave Laws

First, employers should understand whether there are any state or local leave laws that apply to their business. To gain this understanding, employers should review their current employee roster (by number at each location) and determine whether the employer is covered by any state or local laws.

Next, employers should read the local ordinances (or consult with legal counsel) to gain an understanding of what the applicable laws require.  It’s possible the employer’s existing paid vacation/sick leave or paid time off policies satisfy state law or local ordinance requirements. Or that compliance can be achieved through modest revisions to existing policies.  In other circumstances, a more robust review and reworking of existing policies may be appropriate (such as converting from a vacation/sick leave policy to a paid time off policy).

If covered by a state or local paid sick leave law, key issues employers should focus on include accrual requirements and “front-loading” options, usage rights, setting caps on accrued leave and carryover amounts, and recordkeeping requirements.

Know Other Leave Laws

In addition to understanding paid sick leave laws, multi-state employers must be aware of state laws addressing paid or unpaid family leave, pregnancy-related disability leave, parental leave, jury duty leave, military service-related leave, school activities leave and other leave laws.

As is the case with paid sick leave laws, these types of leave laws differ by state and such differences can impact an employer’s handbook language and internal guidance documents (such as summaries and flow charts) developed for managers and HR professionals.

Prior to denying a leave request, or disciplining or terminating an employee for absenteeism, employers should first determine whether any then-current local leave law impacts the employer’s course of action.

Draft Effective Employee Handbooks

Employers should regularly review their employment compliance practices and documents, including any employee handbook(s), and should consult with legal counsel to ensure all appropriate steps are taken to comply with applicable employment laws.

In reviewing a handbook, employers should always consider the handbook’s purpose (considering workforce size, location of employees, and demographics and categories of employees), its desired tone and style based on organizational culture, and what content is required under state law or recommended to best protect the employer against legal claims.

Options for employers with a national footprint include adopting the most employee-friendly version of applicable laws company-wide or adopting a “core” handbook and multiple separate state-specific supplements (which may need to include city-specific language as well, depending on the employer’s footprint).

Leave (including vacation/sick or paid time off) and benefit policies are likely to be affected more frequently by state and local laws than other policies, and therefore require more frequent updates, making it wise to address such policies in one or more supplements that can be easily revised without redistributing the entire handbook to employees.

This Labor Law News Blog is intended for market awareness only, it is not to be used for legal advice or counsel.