Denver Voters to Decide Mandatory Paid Sick Leave Issue
By Ted Olsen
This November's ballot in Denver, Colorado will include an initiative to require employers in the city to provide paid "sick and safe time" for employees. If passed by the voters, as a general rule, employees of covered employers who work 40 or more hours in a year will be entitled to one hour of paid sick and safe time for every 30 hours worked by the employee, up to a maximum of 72 hours of sick and safe time. (Although similar measures have been enacted in Connecticut, San Francisco, Milwaukee, and Washington, D.C., the Denver initiative is more generous to employees in many respects. For instance, the Milwaukee law passed by voters provides for accrual of one hour of paid sick and safe time for every 40 hours worked by an employee.)
If the Denver initiative is passed, the sick and safe time will be available to an employee for his or her health condition or medical care, care of the employee's "family member," or dealing with domestic abuse. These provisions are much broader than similar rights under the federal Family and Medical Leave Act and the Colorado law giving time off to an employee to address domestic abuse, C.R.S. § 24-34-402.7. For example, the definition of "family member" includes siblings, grandparents, grandchildren, domestic partners, and any other individual "related by blood or affinity whose close relationship with an employee is equivalent to a family relationship."
It is very unclear from the proposed ordinance when employees using sick and safe time may be required to produce documentation proving that an absence is a payable one. The initiative says an employer may not make unreasonable demands on an employee for documentation, but gives no guidance on what documentation requirements are "reasonable." Further, while the initiative states an employer may not require an employee to provide documentation about "the details of an employee's medical condition," it implies that some documentation may be required. A very confusing term of the proposed ordinance bans employers from requiring documentation supporting an absent employee's use of sick and safe time until the employee has been absent for three consecutive days. It is not clear whether this relates only to absences due to an employee's illness or to absences for other covered purposes. Moreover, this three consecutive day requirement seems unduly rigid as an employer should be able to require a doctor's note when, for example, an employee repeatedly uses sick and safe time every Friday during the ski season.
Under the initiative, employees could start using their accrued and unused sick and safe time after 90 days of employment. They would not be entitled to payment of accrued and unused sick and safe time upon separation from employment. Employers should anticipate heavy use of such sick and safe time shortly before an employee's resignation, as this sick and safe time could be viewed by employees as "paid time off" to which they are entitled.
If this initiative is enacted, employers could not take an employee's use of sick and safe time into consideration when evaluating employees. Moreover, employers would be prohibited from interfering with employees' exercise of rights, discriminating against such employees, or retaliating against employees for their use of sick and safe time. Indeed, any adverse action taken against an employee within 90 days after an employee's exercise of rights would presumptively be retaliatory.
The Denver Agency for Human Rights and Community Relations would receive and investigate charges of alleged violations, and would be empowered to prosecute charges it deems meritorious. Moreover, employees would have the right to file suit for violations, and could recover damages and equitable relief.
The proposed Denver ordinance would not apply to federal or state government employers. It also would not apply to certain employees covered by collective bargaining agreements, but only if such CBAs clearly and unambiguously waived the employees' rights under the ordinance. However, all other employers, regardless of size, would be required to provide such paid sick and safe time. (This is another example of how the Denver initiative is more generous than some of is counterparts - in Connecticut, for instance, only employers with 50 or more employees are covered.)
The initiative contains a few concessions to smaller and new businesses. For instance, businesses with fewer than ten employees may cap their paid time off at 40 hours (instead of the 72-hour limit for other covered employers). Also, while the initiative would take effect for most employers 60 days after passage, it would not take effect for small businesses until an additional six months elapsed. Further, while employees of most employers would begin accruing sick and safe time upon the start of their employment, employees of so-called "new small businesses" in their first year of operation would not begin their accruals until the completion of the first year of operation.
Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.
©2011 Sherman & Howard L.L.C. September 1, 2011