State and Local Leave Update: July 2015

John GarnerCompliance, Legislative Updates, Resources

If you are trying to keep up with state and local laws related to leaves, you are probably ready to scream “Make it stop!”  There are new paid sick leave laws in Oregon, Emeryville, California and Bloomfield, New Jersey, plus new guidance on the Massachusetts law, clarifications to new regulations on California’s Family Rights Act, a scheduling law in San Francisco, a new pregnancy discrimination law in Florida and an amendment to Maryland’s Flexible Leave Act.

California

The California Department of Fair Employment and Housing has posted the following notice on its website:  “On July 1, 2015, the “Joint Notice for Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave” will become effective, which is worded differently than the prior version of the joint notice, “Notice B,” below.  The Department is aware of this discrepancy and will not penalize a CFRA employer for failure to post, so long as either “Notice B” or “Joint Notice for Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave” is posted.  The Fair Employment and Housing Council (http://www.dfeh.ca.gov/FEHCouncil.htm) is currently reconciling these notices with a rulemaking action to discontinue use of a joint notice, which will result in the publication of one notice for CFRA Leave and a separate notice for Pregnancy Disability Leave after the rulemaking action is approved and becomes effective.”

The city of Emeryville has passed a paid sick leave ordinance, effective July 1, 2015.  Unlike many paid sick leave laws, this ordinance allows employees to take time off from work to aid or care for a guide dog, signal dog or service dog of the employee, a family member or other designated person.

Retailers with 20 or more locations globally and 20 or more employees in San Francisco must now give employees their schedules two weeks in advance.  Available work hours must be offered to existing employees before more part-time, temporary or contract employees can be hired.  Employees must be given one hour of pay for any schedule changes made with less than a week’s notice and two to four hours of pay for changes made with less than 24 hours of notice.  If a retailer is sold, workers will get a mandatory trial period of at least 90 days with the new company.

Florida

Effective July 1, 2015, a new law prohibits discrimination based on pregnancy.

Maryland

Effective October 1, 2015, Maryland’s Flexible Leave Act is amended to prohibit agreements to waive employee rights and to prohibit employers from retaliating against employees for requesting leave.

Massachusetts

The Attorney General has issued a Notice of Employee Rights that must be posted in the workplace and distributed to employees.  The wording of the Notice differs from the content of regulations previously proposed.  The Notice states that the smallest increment of sick leave that can be used is one hour.  The Notice warns employees that they cannot use sick leave as an excuse to be late for work without advance notice of a proper use; except in an emergency, employees must notify their employer before using sick leave.  The Notice states that employers may request certification from a health care provider for any use of sick leave within an employee’s last two weeks of work.

The Attorney General also published a document clarifying a safe harbor for employers with existing paid time off policies.  The clarification states:

For the period July 1 to December 31, 2015, any employer with a paid time off policy in existence as of May 1, 2015, providing to employees the right to use at least 30 hours of paid time off during the calendar year 2015 shall be in compliance with the law with respect to those employees and to any other employees to whom the use of at least 30 hours of paid time off under the same conditions are extended.

To remain in compliance, any paid time off, including sick time, used by an employee from July 1 to December 31, 2015, must be job protected leave subject to the law’s non-retaliation and non-interference provisions.  In all other respects, during this transition period, the employer may continue to administer paid time off under policies in place as of May 1, 2015.

On or before January 1, 2016, all employers operating under this safe harbor provision must adjust their paid time off policy to conform with the earned sick time law.

New Jersey

Bloomfield became the 9th city in New Jersey to have a paid sick leave law, effective June 30, 2015.  Posters are required in all of these cities; however, they have not all issued the required posters.  Irvington has stated that employers must create their own posters.  Employees must also be given notices in each city.

Employers in Trenton won a court battle to make Trenton’s Ordinance applicable only to employers physically located in Trenton.  Other cities require paid sick leave for employees who provide service in that city for at least 80 hours in a year.

Oregon

Oregon has become the fourth state to have a paid sick leave law, joining California, Connecticut and Massachusetts.  Employers with 10 or more employees in Oregon will be required to accrue one hour of paid sick leave for every 30 hours worked, beginning January 1, 2016.  Employees can accrue up to 40 hours of paid sick leave per year.  Employees cannot begin using paid sick leave until the 91st calendar day after beginning work.  Employees paid on a commission or piece-rate basis will receive sick leave pay based on the minimum wage.  Salaried employees are presumed to work 40 hours per week, unless the actual workweek of the employee is less than 40 hours.  There is no requirement to pay sick leave balances on termination of employment.  The law applies to virtually everyone working in Oregon; the only exceptions are independent contractors, employees who receive paid sick leave under federal law, participants in certain work-training or work-study programs and children employed by their parents.  This law grandfathers Portland’s paid sick leave law, which applies to employers with fewer employees; however, it prevents other local governments from enacting new paid sick leave laws, including one in Eugene that had been scheduled to go into effect July 1, 2015.

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