States Mull Paid Sick Laws After Stimulus Leaves Out Mandate

By Emily Brill
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Law360 (March 24, 2021, 9:41 PM EDT) -- Experts who track states' efforts to adopt paid sick leave mandates say the COVID-19 stimulus' lack of such a requirement has strengthened the push to get these measures onto governors' desks, suggesting more states could join California and New Mexico in adopting or expanding paid sick leave laws in the coming year.

Currently, 14 states and Washington, D.C., have paid sick leave laws on the books, and New Mexico is set to join them if Gov. Michelle Lujan Grisham signs H.B. 20 into law, which she indicated on Twitter earlier this month that she would.

The bill, which would let workers accrue at least one hour of sick time per 30 hours worked starting in July 2022, cleared the New Mexico legislature on Saturday, one day after California Gov. Gavin Newsom signed a bill extending the state's COVID-19 paid leave law through Sept. 30.

"Over the past year, we've seen a real wave of interest in paid sick leave from legislators around the country," said Jared Make, vice president of the worker advocacy group A Better Balance. "And you're seeing a lot of activity at the state level right now, because there's disappointment that Congress didn't include a continuation of required emergency sick leave for COVID-19 in the most recent American Rescue Plan."

Here, Law360 recaps the paid sick leave laws passed recently and considers what could be coming down the pike.

States Adopt Sick Leave Policies

Roughly one week after President Joe Biden signed into law the $1.9 trillion stimulus package known as the American Rescue Plan, two states moved to adopt or expand a paid sick leave mandate, which was absent from the federal relief legislation.

A previous COVID-19 stimulus package, the Families First Coronavirus Response Act of March 2020, had included a requirement for employers with under 500 employees to provide short-term paid sick time for various reasons tied to COVID-19, and long-term paid leave to care for kids whose schools or child care facilities were closed. Businesses covered by the law could also seek reimbursement of any qualifying FFCRA leave through tax credits.

Although the paid leave mandates ended Dec. 31, Congress voted in 2020's end-of-the-year spending package to let employers continue claiming the tax credits until the end of March if they kept offering the leave on a voluntary basis.

In the American Rescue Plan, Congress scrapped the March deadline and pushed it to Sept. 30, giving employers an additional six months to claim the tax credit if they offer workers paid leave. But federal lawmakers stopped short of reupping the mandate in the bill signed into law March 11.

State lawmakers, though, were a different story. By Friday, California lawmakers had sent Newsom a bill that would give the state's workforce up to 80 hours of coronavirus-related paid sick leave for eligible employees through September, including those who have to care for pandemic-affected family members.

And the next day, New Mexico legislators sent H.B. 20 to Lujan Grisham, asking her to sign a bill that requires employers to let employees use at least 64 hours of paid sick leave every 12 months, accruing at least one hour of leave for every 30 hours on the clock.

Illinois, Nebraska, Oregon and other states are also seeing momentum on bills to adopt or expand paid sick leave measures, experts say.

"Paid sick leave has been slowly gaining momentum since 2011. In general, states are realizing that there's value to offering some of these paid leave laws for workers," said Suzanne Hultin, program director in the employment, labor and retirement program at the National Conference of State Legislatures. "COVID has been a reason for more states to continue examining that."

Could a Federal Policy Pass?

Administering paid sick leave can sometimes be a headache for national employers, considering that states have different laws on the subject. So, could a federal policy on paid sick leave pass during the Biden years?

It's possible, but far from a guarantee, experts say. One positive sign for leave advocates is the Biden White House's stated support for such a policy.

"It's something that A Better Balance is working on, and we've been thrilled that the Biden-Harris admin has signaled their strong support for it," Make said. "Certainly, there's still a lot of work as we move forward to include paid leave as part of a federal agenda."

In the meantime, national employers should look to the states with the most generous paid sick time policies when crafting their corporate policy, to avoid compliance headaches, said Emery Richards, an associate in the labor and employment practice at Blank Rome LLP.

"To confront the patchwork of varied paid sick leave laws that are constantly evolving at the state and local level, the simplest thing an employer can do is to find the roughest patch — your state that requires you to give the most paid sick leave days, [and] make that your amount everywhere," Richards said.

"It's worth it for avoiding the headaches, legal fees, and administrative nightmare that comes with trying to constantly conform your policies to the ever-changing legal minimum in each individual jurisdiction," she added.

--Additional reporting by Jeannie O'Sullivan, Vin Gurrieri and Alexis Shanes. Editing by Nicole Bleier.

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