April 19, 2014

Jennifer Gokenbach: Proposed Denver Paid Sick and Safe Time Ordinance – Nothing To Sneeze At

Promoting public health? Sounds good. Making sure working adults stay at home when they are sick? I’m on board. Flexible and supportive working environment? Of course, who doesn’t want that.

Voters in San Francisco, Washington D.C., Milwaukee, and Connecticut were motivated by these ideals when passing paid sick leave ordinances or bills in their cities or state (although Wisconsin Governor Scott Walker nullified Milwaukee’s bill after it was passed). You can bet voters in Denver, too, will be equally motivated by these ideals and the desire to help working families and low income wage earners when deciding Ballot Initiative 300 in November 2011.

But, what exactly is the proposed Denver Paid Sick and Safe Time Ordinance (PDF), and is it really a good idea for Denver? As with any new legislation, the text of the legislation itself is where the rubber meets the road so to speak, and provides critical insight into the protections afforded, as well as the possible unintended consequences.

Key Provisions of Denver’s Proposed Paid Sick and Safe Time Ordinance

  • Provides paid sick and safe time leave for all employees within the geographic boundaries of the City and County of Denver, including part-time and temporary employees, who work at least 40 hours a year (federal and state government employees and union members are exempt).
  • All Colorado employers who employ eligible workers in the City and County of Denver must comply, regardless of size, but new businesses are exempt during their first year of operation.
  • Paid leave would accrue at the rate of 1 hour for every 30 hours worked.
  • Large employers, defined as employers with 10 or more employees, must offer up to 72 hours, or 9 days, of paid leave each calendar year.
  • Small employers, defined as those with less than 10 employees, must offer up to 40 hours, or 5 days, of paid leave each calendar year.
  • Up to 72 hours, or 9 days, of paid leave may be carried over from year to year.
  • Paid leave may be taken after 90 days of employment, and may be taken in as few as 1 hour increments.
  • No advance notice is required for an employee to take leave.
  • No documentation is required until the employee takes 3 or more consecutive days off.
  • Employers cannot require employees to search for, or provide, a replacement worker to cover the hours missed.
  • Employers cannot “take retaliatory personnel action or discriminate” against employees exercising their sick and safe time rights.
  • Paid leave can be taken for:
    • An employee’s own mental or physical illness, injury, health condition, need for medical care or treatment, or need for a medical procedure or preventative medical care;
    • To care for an employee’s family member’s mental or physical illness, injury, health condition, need for medical care or treatment, or who needs a medical procedure or preventative medical care;
    • The closure of the employee’s place of business, or to care for a child whose school or place of care has been closed, due to a public health emergency;
    • To seek a civil protection order to prevent domestic abuse pursuant to Section 13-14-102, C.R.S.;
    • To obtain medical care or mental health counseling, or both, for the employee or employee’s children to address physical or psychological injuries from domestic abuse, stalking, sexual assault, or other crime involving domestic violence;
    • To make the employee’s home secure, or to seek new housing, due to domestic abuse, stalking, sexual assault, or other crime involving domestic violence; and
    • To seek legal assistance to address issues arising from domestic abuse, stalking, sexual assault, or other crime involving domestic violence, and attend or prepare for court-related proceedings.

Unclear and Potentially Troublesome Provisions

1.  Definition of “Family Member” Too Broad

Although seemingly modeled after the San Francisco and D.C. bills, Denver’s new paid leave ordinance includes a far broader definition of “family member” than any prior bill passed. It includes:

  • A person related by blood, marriage or legal adoption, including a child, parent, spouse, sibling, grandparent, or grandchild of the employee;
  • A foster child, parent, sibling, grandparent, or grandchild of the employee;
  • A child to whom the employee stands in loco parentis or for whom the employee is the legal guardian;
  • The employee’s domestic partner;
  • The spouse of an employee’s child, parent, sibling, or grandparent;
  • A legal guardian of the employee or a person who stood in loco parentis to the employee when he or she was a minor;
  • A parent of the employee’s spouse; or
  • Any other individual related by blood or affinity whose close relationship is equivalent to a family relationship.

The spouse of an employee’s sibling? Call me crazy, but I think it is a real problem to obligate a small business owner to provide paid time off for an employee to take his or her sister’s husband to a routine doctor’s appointment. Or, to leave open all the possible individuals covered under the vague phrase “any other individual related by blood or affinity whose close relationship is equivalent to a family relationship.” I wonder when we would see the first complaint involving a worker claiming that his or her college roommate is “like family.”

2.  Unclear How to Count Number of Employees or Who May Be Eligible

It is unclear how employers will be required to count their number of employees to determine the amount of leave benefits that must be offered.  The definition of employer includes all businesses in the State of Colorado.  But, the definition of an eligible employee is anyone employed within the geographic boundaries of the City and County of Denver.  So, for purposes of determining the amount of leave benefits, are employers required to count all employees in Colorado, or only those employed within the City and County of Denver?

Likewise, if employees need only be employed in the City of County of Denver for 40 hours a year to be eligible, is a worker whose main office is located elsewhere in Colorado, but who travels to Denver frequently throughout the year for deliveries or to conduct business, eligible for the mandated leave benefits?

3.  No Advance Notice Required

Where other paid sick leave bills expressly authorize employers to require reasonable notice to be given where practicable when an employee’s need for leave arises, Denver’s new proposed ordinance vaguely says that employers “may not impose unreasonable barriers to use of paid sick and safe time.”  What does that mean?  An “unreasonable barrier” in one instance could be reasonable under different circumstances.  The use of such vague language, rather than clear language allowing employers to require advance notice where practicable, in my view, tips the scale of this legislation away from fair and balanced, and only invites litigation.

4.  Employers Prohibited From Requesting Documentation

Additionally, where other sick leave bills allow employers to require appropriate documentation to support the leave to prevent abuse, Denver’s proposed ordinance prohibits employers from requesting any documentation, until after 3 consecutive days of absence.

5.  Employers Already Offering Generous Leave Benefits Not Necessarily Exempt

Finally, even though the new ordinance attempts to exempt employers who already provide vacation or personal time off (PTO) in an amount equivalent or greater than the mandated 9 (or 5) days of leave benefits, the rub is that employers must allow the vacation or PTO “under the same conditions as paid sick and safe time” – meaning that if the other leave benefits require prior notice or documentation, this new leave bank must be provided in addition.  This is another major difference between Denver’s proposed sick leave ordinance than those passed in San Francisco, D.C. and Connecticut. At least in those ordinances or bills, employers who offered more leave days than that legislatively mandated, were deemed in compliance, without all the other restrictions.

Food for Thought

The Agency for Human Rights and Community Relations (staffed currently by 10 people) in Denver would be responsible for implementing and administering this new law, taking complaints, conducting investigations, holding hearings, providing conciliation, issuing orders, and imposing fines. With only 10 individuals currently in the Agency, the implementation of this new ordinance along with a potential influx of complaints may likely require expansion, using already-tight taxpayer dollars.

Everyone knows that successful, long-term and mutually beneficial employment relationships require employees and employers to work together, and there are a multitude of good employers in Denver and throughout Colorado who bend over backwards to keep their workforce happy with generous benefit packages. I am certainly not advocating that employees come to work sick or face losing their job if their child is sent home from school sick.

But, is imposing overly broad, vague legislation with unusually restrictive obligations on large and small employers alike, however good in principal, what Denver needs in this economic climate? Governor John Hickenlooper and Mayor Michael Hancock say no, and it is now up to Denver voters to decide in November.

Jennifer Gokenbach is Of Counsel at Ogletree Deakins and focuses her practice on management side trial work and counseling on a wide range of employment law issues. She blogs at Colorado Employer’s Law Blog, where this post originally appeared on September 10, 2011.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

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