Proposed sick leave ordinance raises legal, business questions

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A proposed ordinance, which would require all non-government employers in the city of Milwaukee to provide up to nine days of paid sick leave annually, has some attorneys feeling a little queasy.

The referendum will appear on all Milwaukee ballots on Nov. 4. If approved, it could cause clients of local employment law attorneys to scramble to dramatically help companies alter policies to comply with the new mandate.

“I don’t think that anyone questions the motives underlying this ordinance, but I think that there is an overwhelming question about its wisdom,” said attorney Bradden C. Backer of Friebert, Finerty & St. John S.C.

Backer and other attorneys, who primarily represent employers, suggested that the ordinance as written could generate litigation regarding documentation and usage of sick leave, along with questions about how unionized trades can legitimately fold the mandate into current collective bargaining agreements.

But supporters say the broad ordinance would offer employees an avenue to protect themselves and take legal action against businesses that fire them for missing work for health reasons not previously covered under state or federal law.

“I guess I’m in favor of a regulation like that only because what I see with clients who have missed a day or two of work is they are sometimes getting fired and have no recourse, because their particular health ailment is not counted as a disability,” said attorney Janet L. Heins of Heins Law Office L.L.C., in Mequon.

Broad Protection

The federal Family and Medical Leave Act (FMLA) requires companies with at least 50 employees to offer unpaid sick leave, which is largely consistent with Wisconsin law.
But the Milwaukee ordinance would apply to a company of any size and would allow employees to take sick leave for a variety of reasons, including childcare or family health issues, with little notice or documentation.

Both the federal law and state statute allow an employer to ask for advance notice and documentation, although employers can set their own standards internally.

If someone knows he or she is going to have surgery and wants to take medical leave, under federal or state laws, an employee is required to provide a doctor’s statement, explained Backer. His interpretation of the Milwaukee ordinance is that it specifically would not have such a requirement.

“This isn’t a sick day ordinance, this is an increased vacation ordinance,” Backer said.
Several local business leaders who appeared at an Oct. 9 forum on the ordinance said employers would be naive to not expect some employees to take advantage of the broad language.

John Topp, chief executive of the Allied Construction Employers Association (ACEA), said a possible injunction could be filed if the ordinance passes, given that some unions recently negotiated new collective bargaining agreements, which outline sick leave provisions.

“This is just another legal bill for us that we don’t need,” said Topp. “A number of collective bargaining agreements were just finished and we don’t need a third party saying do this differently or better.”

But Heins and Ellen Bravo, the former head of 9to5, the National Association of Working Women, which crafted the ordinance, suggested that the broadness of the proposed law is one of the benefits.

Since the ordinance would cover virtually every non-government employee, including those who are part-time, it will promote new hires to want to stay employed, therefore benefiting the business.

“What I don’t understand about this situation is when an employee is fired for missing a day, it would be more costly for the employer to recruit a replacement, and train them,” said Heins. “It seems a lot less costly to give a few days of sick leave instead of pay for turnover.”

Enforcement

While the Milwaukee City Attorney’s Office is not formally opposing the ordinance, the department raised concerns in a letter when discussion on the topic began in 2007.
City Attorney Grant F. Langley questioned the authority of the city to require private-sector employers to provide paid sick leave. He recently said those concerns remain.

The local ordinance, which is almost identical to one that was adopted in San Francisco last year, mandates that employers provide up to nine days of paid sick leave, with an accrual rate of one hour of paid leave earned for every 30 hours worked.

Businesses with 10 or fewer employees would cap paid sick leave at five days annually, but for both large and small companies, employees will be able to carry over leave.
Attorney Daniel J. Finerty of Krukowski & Costello, S.C., in Milwaukee said if the ordinance passes, employees would be eligible to start taking paid sick leave 90 days from the date the law is drafted, which would be on or before Feb. 12, 2009.

In the letter, Langley said he expects the ordinance will be challenged in court, but did not venture as guess as to whether the city would be denied authority to regulate such a law.

He said that the ordinance could be defended if the legislative record showed that the paid sick leave requirement reasonably related to the promotion of public health and welfare.

Finerty said compliance complaints would be filed with the Equal Rights Commission, which would then take the appropriate action against an employer.

But attorney Deborah A. Krukowski questioned whether an employer can modify its current leave policies, which may include paid time off (PTO) instead of sick leave, to meet the ordinance requirements.

“Or would this constitute a “retaliatory personnel action” under the ordinance’s enforcement provision?” said Krukowski.

The referendum is binding. Finerty and Bravo both hoped the details of the ordinance could be refined to meet the needs of businesses, if passed by voters on Nov. 4.