Sick leave mandate would put legal burden on employers

    On Nov. 4, City of Milwaukee residents will vote on a referendum to decide whether all private employers must provide employees up to nine days of mandatory paid sick leave. It is widely believed that voters will pass this binding referendum creating a new government-mandated benefit for all employees employed in the City of Milwaukee.

    Businesses operating in Milwaukee should to be familiar with the politics behind the referendum and be prepared to comply with the proposed ordinance if it becomes law.

    9to5, The National Association of Working Women, collected more than 40,000 signatures demanding that the referendum be presented to the voters. The signatures were filed with the City Clerk, and under Wisconsin’s direct legislation law, the City of Milwaukee Common Council had two choices: (1) approve the proposed ordinance with no changes (and no opportunity for veto by Mayor Tom Barrett), or (2) send the issue to the voters as a binding referendum.

    Since the ordinance is not the product of the typical political debate and language compromises which accompany many pieces of legislation, the paid sick leave ordinance contains many vague and employee-friendly provisions that will be difficult for employers to interpret and administer.

    These ambiguities will be left to the litigation process.

    The proposed ordinance provides that all private sector employees employed within the city shall accrue one hour of paid sick leave for every 30 hours worked with a 72 hour maximum bank of paid sick leave (i.e., nine paid sick days per year with accruals to be carried over from year to year to a maximum of 72 hours).

    Employees of a "small business," defined as a company with fewer than 10 workers (including part-time and temporary workers), accrue a maximum bank of 40 hours per calendar year (i.e., five paid sick days per year). Under the ordinance, employees begin to accrue paid sick leave immediately upon commencement of employment, but are not entitled to use the accrued sick leave until the 90th calendar day following the start of employment. There is no requirement to pay out accrued sick leave upon termination of employment, but those individuals rehired within one year would maintain their previous sick leave bank and be able to use the benefit upon rehire.

    Under the proposed ordinance, paid sick leave could be used by an employee for his or her own physical or mental condition or for any preventative medical care. Preventative care is not defined in the ordinance, and arguably applies to any ancillary activity that may prevent physical or mental health issues.  Employees will also be able to take leave for a "family member" for the same reasons.

    The term "family member" is very broadly defined, going so far as to cover the "spouse of a biological, foster or adopted sibling," "domestic partner" and "any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship."

    Thus, if an employee’s close "affinity" friend has any need for "preventative medical care," the employee is allowed paid sick leave. In addition, an employer may not require that "the employee search for or find a replacement worker," nor can an employer require "unreasonable documentation."

    Further, "an employer may not require disclosure of information relating to … the details of an employee’s medical condition as a condition of providing sick leave." The ordinance also contains notice-posting, anti-retaliation and enforcement provisions.

    Many employers fully support best practices in compensation and benefits to determine the appropriate competitive package for a particular position. However, the broad scope of the proposed government mandated paid sick leave has caused business groups such as The Metropolitan Milwaukee Association of Commerce (MMAC) to speak out against the proposed law.  Some of the main arguments asserted against the ordinance are:

    • The ordinance will place the City of Milwaukee at a competitive disadvantage when attempting to attract or retain employers.
    • The ordinance’s language is vague and overly broad and would create administrative burdens and potential litigation costs for employers who will grapple with its provisions.
    • The ordinance will essentially provide employees with a “free pass” to miss up to nine days of work per year, fully paid, without a mechanism to guard against abuse.
    • The ordinance will force employers to allocate their pool of compensation dollars to mandatory paid sick leave reducing employer flexibility to attract talent by providing compensation and benefits appropriate for the position.

    While one can find areas of good intention in the proposed ordinance, multiple business groups have argued that the ordinance will negatively impact the City of Milwaukee, its employers, and eventually the very employees it intends to help. More information pertaining to the proposed ordinance may be found on the MMAC’s Web site (www.mmac.org) or by contacting Steve Baas, Director of Government Affairs for the MMAC (sbaas@mmac.org).

    Frank Gumina is a shareholder of Whyte Hirschboeck Dudek S.C. and member of its labor and employment law team. Additional information is available by contacting him at fgumina@whdlaw.com.

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