On November 4, 2008, voters in the City of Milwaukee overwhelmingly approved a referendum requiring private employers to provide up to nine (9) days of paid sick leave for employees in the City of Milwaukee (the “Ordinance”). Please click here to view the Ordinance it its entirety. The measure passed with 68% of the vote.
The Ordinance now automatically becomes law once “publication” takes place. The Ordinance will become effective after publication, which must take place within ten (10) days after the election. “Implementation” of the Ordinance must be accomplished within ninety (90) days of publication. Therefore, employers should now consider their current policies (sick leave, PTO, and other paid leaves) and the mandates required by the Ordinance.
In addition, employers should consider whether to implement revised policies in the short term or await word from the courts. Legal challenge to the Ordinance appears to be a certainty. We will provide further updates on this issue, but in the meantime, consultation with legal counsel on the implications of the legal challenge should be considered.
The Ordinance provides that all private sector employers in the City of Milwaukee must provide employees one (1) hour of paid sick leave for every thirty (30) hours worked, not to exceed seventy-two (72) hours (9 days) per calendar year. Small employers (those with fewer than 10 employees) must provide forty (40) hours (5 days) of paid sick leave per calendar year. Employees include full-time, part-time, and temporary workers, and “any person who is employed within the geographic boundaries of the City.”
Employees are to begin to accrue paid sick leave upon their commencement of employment but are not eligible to use paid sick leave until they have worked for at least ninety (90) days. The paid sick leave is to be paid at the employee’s regular hourly rate of pay. Employees can carry over paid sick leave from one calendar year to the next, up to a maximum amount of nine (9) days or five (5) days (depending on employer size). Under the Ordinance, an employer does not have to pay out accrued but unused sick days upon termination.
The Ordinance clearly impacts employers located in the City of Milwaukee but it may also impact employers outside Milwaukee who do business within the City. The Ordinance applies to all persons who are “employed within the geographical boundaries of the City by an employer.” An interpretation that is feared is that the Ordinance applies to employers whose employees work within the City at any given time such as construction contractors, delivery persons, or other workers who perform work within the City boundaries.
The Ordinance provides a very broad definition of use of paid sick leave. Employees may take paid sick time for their own or a family member’s illness or injury or treatment for a health condition. The Ordinance also allows employees to use paid sick leave due to domestic abuse, sexual assault, or stalking. There are serious definitional challenges within the Ordinance. In addition, the Ordinance includes a broad definition of “family member” to include immediate family members, spouse, grandparents, grandchildren, domestic partners, individuals related by blood or “affinity,” as well as other broad definitions of a family member. Beyond these broad definitions of use of sick leave and “family members,” the Ordinance restricts an employer’s common administrative practices regarding time off. For instance, one provision of the Ordinance states that “an employer may not require disclosure of information relating to … the details of an employee’s medical condition as a condition for providing paid sick leave.” The term “details” is undefined. This language, of course, is in contrast to the medical certification requirements of the federal and Wisconsin Family and Medical Leave Act as well as most employer sick leave or paid time off programs. Another provision in the Ordinance prohibits imposition of “unreasonable documentation of illness.” While there is uncertainty and vagueness in the Ordinance, it would be reasonable for an employer, we believe at this time, to continue to require documentation in accordance with its existing FMLA and leave policies.
Estimates from employers as to the cost of this mandated sick leave are significant and will be carried to the bottom line of businesses throughout Southeast Wisconsin. In addition to this significant increased cost, employers will also face a difficult coordination of the Ordinance’s requirements with existing sick leave, PTO, and other paid leave programs. If an employer’s current paid leave programs meet the broad criteria under the Ordinance, then the employer will not have to provide additional paid sick leave pursuant to the Ordinance. However, most existing PTO, sick leave, and other paid leave policies are not as broad as the mandates described in the Ordinance or have other administrative restrictions not found in the Ordinance. The result will be that employers who wish to coordinate their existing paid leave programs with this new Ordinance will need to review and revise their paid leave programs. An employer who does not almost certainly will face the prospect of having to treat the mandated paid sick leave under the Ordinance as a supplement or addition to its existing paid leave programs.
The Ordinance also requires notice and posting, and record keeping. Namely, employers are to give notice to employees of entitlement to paid sick leave and that retaliation against employees who request or use paid sick leave is prohibited. The notice or posting must be in the languages of English, Hmong, and Spanish. Lastly, Employers are to retain records documenting hours worked by employees and paid sick leave taken for a period of five (5) years.
While the implementation of the Ordinance will not take full effect for another ninety (90) days, and a legal challenge may further delay implementation, an employer may wish to begin consultation with legal counsel and human resource professionals to review existing programs and coordinate with the Ordinance’s mandates.
Again, we will provide further updates, especially regarding a likely legal challenge, in the near future.