Other States’ Sick Leave Laws May Create Nightmare for Wisconsin Employers
In 2011, Governor Scott Walker signed into law 2011 Wisconsin Act 16, which prohibits Wisconsin municipalities from enacting local sick leave ordinances. The rationale behind the law is that allowing a patchwork of overlapping and inconsistent laws would create undue burdens on employers in the state. Unfortunately, Wisconsin’s neighbors—Minnesota and Illinois—have not enacted similar bans on local sick leave ordinances. As a result, Wisconsin businesses that send employees to work in Minnesota or Illinois face the precise type of administrative nightmare that Act 16 sought to avoid. This article attempts to make some sense of the patchwork of local ordinances Wisconsin employers may find themselves subject to in neighboring states.
Both Minnesota and Illinois have enacted paid sick leave laws. Neither law requires employers to provide sick leave or alter existing policies that provide sick leave. However, both statutes expand how such leave can be used. In other words, employers are not required to provide paid sick leave, but if they do, employees must be allowed to use leave for the purposes specified in the statutes.
For example, Illinois’s Employee Sick Leave Act provides that employees may use personal sick leave benefits for their own medical condition or to care for family members with a medical condition. The statute, however, allows employers to limit the amount of time used to care for family members to half an employee’s paid sick leave. Minnesota’s statute goes further. It requires employers that offer paid sick leave to allow employees to use leave for their own medical condition, to care for sick family members, and for “safety leave”—that is, leave to receive assistance for domestic violence, sexual assault, or stalking.
Both statutes contain antiretaliation provisions. Minnesota’s law allows employees to recover actual damages, costs and disbursements, reasonable attorneys’ fees, and injunctive or other equitable relief for violations.
The state laws discussed above are rather benign, but several municipalities in Illinois and Minnesota have adopted onerous paid sick leave ordinances that require employers to provide certain amounts of leave based on the number of hours employees work in a given jurisdiction, where work is performed, and the duration of employment. The most notable ordinances were recently enacted in Chicago and Cook County, Illinois, and Saint Paul and Minneapolis, Minnesota. The ordinances are cumbersome, and they all have lengthy implementing rules. They have specific rules governing eligibility, accrual, carryover, and use of sick leave.
A comprehensive analysis of the ordinances is not possible in this article. Instead, this article summarizes the main provisions of each ordinance. The ordinances have broad definitions of “sick leave” that include caring for family members as well as taking time off for domestic violence or sexual assault. They also contain strong antiretaliation provisions and subject employers to administrative enforcement actions and civil remedies, including attorneys’ fees.
Cook County’s sick leave ordinance applies to any employer with a place of business in the county that gainfully employs at least one covered employee. Implementing rules define “place of business” to mean “any fixed location where the business of the employer is transacted.” An employee must work two hours in the county to be covered. Time spent on uncompensated travel or “passing through” is excluded.
Employers must provide covered employees who work at least 80 hours in a 120-day period with one hour of accrued, earned sick leave for every 40 hours worked in the county. The 80-hour requirement may be satisfied by work performed anywhere, but only work performed within Cook County counts toward the accrual of earned sick time. Once accrued, sick leave may be taken at any time, regardless of where an employee is working.
Sick leave must be made available for use no later than 180 days after employment begins. Employers cannot require an employee to find a replacement as a condition of taking sick leave.
Sick leave must be accrued in hourly increments—fractional accrual rates are not allowed. At the end of any given 12- month period, employees must be allowed to carry over half of their unused accrued sick leave (up to 20 hours) to the following 12-month period. Sick leave is capped at 40 hours per 12-month period unless the employer allows more leave to be taken. The 12-month period begins on the date an employee begins to accrue sick leave. An additional 40 hours of carryover leave is required if the employer is subject to the Family and Medical Leave Act (FMLA). As an alternative to the above accrual method, employers may provide the full allotment of required sick leave up front at the beginning of each year and satisfy the required minimums through other paid time off (PTO) policies if they otherwise comply with the ordinance.
Under the ordinance, a notice of employee rights must be posted at all worksites in Cook County. Additionally, employees must be provided written notice of their rights under the ordinance when they are hired. Note that the ordinance does not apply to employees who work in the city of Chicago or any other municipality that has exempted itself from the law.
Chicago’s ordinance is similar to Cook County’s law and applies to all employers that have at least one physical location in the city where work is performed. The ordinance covers employees who perform two hours of work during any two-week period while physically present in the geographical boundaries of the city. Uncompensated travel time does not count.
Under the Chicago ordinance, covered employees who work at least 80 hours for an employer during a 120-day period are eligible for paid sick leave. Employees accrue one hour of paid sick leave for every 40 hours worked, up to 40 hours per 12-month period. An employee becomes eligible for paid sick leave after working 80 hours during a 120-day period following the commencement of employment.
Paid sick leave begins to accrue on the first calendar day after an employee begins work and must be made available for use no later than 180 days after employment begins. Employees are allowed to use a maximum of 60 hours (including carryover hours) in any given year. The 12-month period commences on the date an employee begins to accrue paid sick leave, but only hours worked in the city count toward the accrual of leave.
At the end of a 12-month accrual period, employees must be allowed to carry over half of their unused accrued paid sick leave (up to 20 hours) to the following 12- month period. Odd-numbered carryover hours must be rounded up to the next even number (e.g., seven hours of accrued leave will be rounded up to eight). Employers can avoid the carryover requirement altogether by granting 60 hours of paid sick leave at the beginning of each 12-month period or benefit year.
Employers must keep a copy of the ordinance and draft implementing rules on file, post a notice of employee rights at each facility in the city, and provide written notice of employees’ paid sick leave rights with their first paycheck. In addition, employers must keep detailed records of employees’ personal information, sick leave eligibility date, accrued sick leave, used sick leave, hours worked each day, and other information for at least five years.
Minneapolis’ sick leave ordinance mandates that employers provide all employees who work in the city for at least 80 hours per year, including part-time and temporary workers, a minimum of one hour of sick leave for every 30 hours worked (up to 48 hours per year). Only hours worked in the city count toward the 80-hour threshold. Time spent traveling through the city does not count unless an employee stops and performs job duties in the city.
On its face, the ordinance applies to all employers with one or more employees, regardless of where they are located and whether they have a place of business in the city. However, because of pending litigation, the implementing rules indicate that the ordinance will not apply to “any employer resident outside the geographic boundaries of the City.”
Notably, the law requires employers to provide paid sick leave only if they have six or more employees. Employers with fewer than six employees must provide unpaid leave. All workers are counted when determining an employer’s size, regardless of where they are located and their status as full-time, part-time, temporary, and so on.
Employees begin to accrue sick leave at the commencement of employment and may use leave 90 days later. Employees are permitted to carry over up to 80 hours of accrued sick leave to the following year. Exempt employees accrue sick leave based on a 40-hour workweek or actual hours worked in a normal workweek.
The implementing rules clarify that sick leave is accrued only for hours an employee performs work while physically present in the city. However, the ordinance does not specify whether leave is available only for time an employee would otherwise work in the city. Employers that have a PTO policy or make other forms of paid leave available are not required to provide additional leave if their existing forms of paid leave satisfy the ordinance’s requirements.
Finally, the Minneapolis ordinance has extensive record-keeping requirements. Employers must maintain records of the amount of accrued sick time employees have available and the amount of sick time employees use for three years. Employers are not required to track covered employees’ progress toward the 80-hour threshold. However, employers must make “a reasonable estimate” of employees’ time spent working in the city for purposes of sick leave coverage, accrual, and use.
Employers must post a notice of employee rights in the form provided by the city and include an additional notice in their employee handbook. The poster and notice must be provided in English and any language spoken by more than five percent of the employer’s workforce in the city.
Saint Paul’s sick leave ordinance is similar to Minneapolis’ ordinance. Saint Paul’s ordinance generally provides that employers must provide employees one hour of earned sick leave for every 30 hours worked (up to 48 hours per year). The law applies to employees who perform at least 80 hours of work in the city per year. Under the current implementing rules, the ordinance applies only to employers that have a permanent location in the city. Notably, it applies only to hours worked in the city. The implementing rules have similar provisions governing commuting and intercity travel as the other local sick leave ordinances.
Employees may use earned sick leave 90 calendar days following the commencement of employment as it accrues, provided they work 80 hours in the city during the first 12 months of employment. Sick leave may be used only for periods an employee is scheduled to work in the city. Sick leave accrues in hourly increments. Employees may carry over all earned and unused sick leave to the following year, but they may accrue a maximum of 80 hours of leave per year.
Employers can avoid the accrual rules by granting 48 hours of leave after employees’ initial 90 days of employment and providing at least 80 hours of sick leave each subsequent year. Vacation and PTO may be used to satisfy the ordinance’s minimum sick leave requirements. If an employee exhausts all paid leave under a general PTO policy for reasons unrelated to sick leave, the employer is not required to furnish additional leave.
Employees may use sick leave in increments consistent with current business or payroll practices, provided increments are not longer than four hours. Sick leave must be provided upon employees’ request, but employers may require employees to comply with their usual and customary notice and procedural requirements for requesting leave, provided the requirements do not interfere with the purpose of leave. Additionally, an employer may require reasonable documentation for the purpose of leave if an employee accrues more than three consecutive absences. However, an employer may not require employees to find a replacement for their position as a condition of taking leave.
Employers must post a notice explaining that employees are entitled to sick leave, the amount of leave, the terms under which leave may be used, the ordinance’s antiretaliation provisions, and employees’ right to file a complaint or civil lawsuit. Notice must also be provided in the employer’s employee handbook.
Moreover, employers must provide employees information concerning their total accrued and used leave upon written demand. Employers must maintain accurate records of hours worked by employees, the amount of leave taken, and the amount of leave accrued. The records must be kept for three years and made available to employees and the city upon request. Failing to maintain proper records will result in a presumption that the employer has violated the ordinance.
The sick leave ordinances in Cook County, Chicago, Saint Paul, and Minneapolis create a stunningly complex patchwork of rules, record-keeping requirements, and notice and posting obligations. Wisconsin employers with employees working in those jurisdictions must ensure that their HR personnel understand the specific requirements of each law, including the precise definitions of “covered employer” and “covered employee,” mandatory minimum requirements, and eligibility, accrual, and use rules.
Consult with competent counsel if you are uncertain whether the ordinances apply to your company and how best to comply given your particular circumstances. Failing to comply with the ordinances could result in administrative fines, backpay awards, enhanced damages, and attorneys’ fees.
This article, slightly modified to note recent updates, was featured in the August 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.