St. Paul became the second city in Minnesota (Minneapolis was the first) to pass a sick leave ordinance. Effective July 1, 2017, employers with 24 or more employees must provide the leave specified in the ordinance, while those with 23 or fewer employees do not need to comply until January 1, 2018.
Coverage
The St. Paul ordinance applies to employers of all sizes – there is no “small employer” exclusion. However, only those employers who have workers (including temporary and part-time workers) that perform work within the geographic boundaries of St. Paul for at least 80 hours per year are subject to the ordinance. If none of your workers perform work in St. Paul for that many hours, you are off the hook.
How Leave is Earned
The basics of the new ordinance are:
– Minimum Accrual. Covered employees must be provided with at least one hour of paid leave for every 30 hours worked. The ordinance does not specify that only those hours worked in St. Paul are credited for purposes of sick leave accrual, so it may be that all hours worked by the employee (even if they are outside the city of St. Paul) must be credited toward the employee’s accrual of sick leave. Clarification on this will likely be issued soon.
– Waiting Period. While accrual begins at the date of hire (or on the effective date of the ordinance), use of the paid leave may begin after 90 calendar days on the job.
– Annual Cap. Employers can limit an employee’s annual sick leave accrual to 48 hours per year.
– Maximum Carryover. Up to 80 hours can be carried over from year to year.
– Minimum Usage. Employees may be required to use sick leave in four-hour increments.
Employees using their paid sick leave must be paid “at the employee’s standard hourly rate” for hourly employees or “equivalent rate” for salaried employees.
How Leave May Be Used
Employees may use leave for many of the same purposes as the Minneapolis ordinance: (1) an illness, injury, health condition, or preventative care; (2) care for a family member for the same reasons; (3) domestic violence or personal safety issues; (4) certain business closures by order of a public official; or (5) care for a child whose school or place of care has been closed by order of a public official.
In addition, the St. Paul ordinance provides that employees may use sick leave to “care for a family member whose school or place of care has been closed due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected closure.” Presumably, school “snow days” and/or a daycare provider’s unexpected closure would be covered by the ordinance.
Recordkeeping and Notice
Employers will have to comply with notice and recordkeeping requirements:
– Employers must include a “notice of rights and remedies” under the Ordinance in their employee handbook;
– Employers also must post a “notice” in each establishment where employees covered by the ordinance are employed;
– Employers must track all “hours worked by employees,” which presumably includes both exempt and non-exempt employees;
– These records must be retained for at least three years. An employer who fails to keep adequate records may be “presumed” to have violated the ordinance; and
– Employers must treat as confidential all information provided by the employee in support of the employee’s request for sick leave, including the fact that “the employee has requested or obtained leave.”
Exemption
The St. Paul ordinance provides that employers already providing these benefits are exempt from its requirements. However, this may not be a great comfort to most employers since it seems that all obligations of the St. Paul ordinance must be present for the exemption to exist. Therefore, even if an employer already grants more sick leave than the ordinance requires, the accrual and carryover provisions also would have to be observed.
Enforcement
The Ordinance will be administered and enforced by the St. Paul Department of Human Rights and Equal Economic Opportunity (SPDHR). If a violation is found to have occurred, the SPDHR has the ability to award reinstatement and backpay, as well as:
– For the first violation, two times the dollar amount of sick leave withheld from the employee or $250, whichever is greater;
– For the second violation, the SPDHR may also award an administrative fine of $1,000 (payable to the city); and
– For the third and any subsequent violation, the SPDHR may award an administrative fine of up to $1,000 (payable to the worker) or in the amount of ten percent of the total amount of unpaid wages, whichever is greater.
The ordinance specifically warns that employers are barred from retaliating against employees for using or attempting to use sick leave. It remains to be seen, however, how this will be interpreted in connection with attempts to discipline employees for excessive absences that might still be subject to sick leave.
In addition to filing a charge with SPDHR, an aggrieved employee may file a lawsuit against the employer in state district court. The St. Paul ordinance provides that a successful plaintiff may recover two times the value of any uncredited sick leave, costs, as well as “reasonable attorneys’ fees.”
Bottom Line
St. Paul often seeks to keep up with or even surpass Minneapolis, and it looks like they nailed it here since this ordinance seems more expansive than the parallel law passed across the river. The decision not to exempt small employers will undoubtedly be a burden on many small retailers and non-profits. Coverage of student workers on St. Paul’s college campuses is a real head-scratcher since student employment is usually a tuition assistance measure and the students are not generally in danger of losing their pay or their jobs if they miss work due to illness.
While it is always possible that somebody will try to litigate to prevent this ordinance from taking effect, it is strongly advised that all employers covered by this ordinance start preparing to meet your obligations. It may cause some headaches but at least now you can call in sick.
Critical developments such as this will be the focus of the Felhaber Labor & Employment Seminar on October 28, 2016. You can view the seminar agenda and .access our online registration by clicking here.