October 22, 2018
Ms. Alison McLean Lane
District 14 Legislator, Albany County Legislature
112 State Street
Albany, NY 12207
Dear Ms. Lane,
The ERISA Industry Committee (“ERIC”) applauds your efforts to provide paid sick time to employees working in Albany County. Your proposed local law to provide access to paid sick time (“Local Law”), while well-intentioned, without small revisions will increase the compliance and financial burdens on large employers that already provide paid leave to employees in the county, the state, and other jurisdictions.
I. ERIC’s Interest in the Local Law
ERIC is the only national association that advocates exclusively for large employers on health, retirement, and compensation public policies at the federal, state, and local levels. ERIC’s members provide comprehensive paid leave programs that benefit tens of millions of workers and their families nationally, and thousands in Albany County alone. ERIC has a strong interest in proposals, such as your proposed Local Law, that would affect its members’ ability to continue providing quality and uniform paid sick leave benefits.
Large employers have been providing generous paid leave policies to thousands of workers in Albany County and across the country for years. The Local Law as currently drafted, would place unnecessary burdens on large employers who already satisfy the underlying purpose of the law—to provide paid leave. Ideally, large companies that operate in multiple jurisdictions attempt to provide uniform employee benefits to all employees across the country. While several states and localities have implemented paid sick leave laws, most of these laws have provided large employers that already provide paid leave the flexibility to maintain a uniform policy across the country.
As currently drafted, the Local Law does not provide such flexibility, largely with respect to the: (i) definition of “family member”; (ii) maximum accrual; and (iii) the carryover unused earned paid sick time. Our recommendations on alterations to the Local Law are outlined in greater detail below.
II. ERIC’s Recommendations
The Ordinance’s definition of “family member” is broad in comparison to the most other states and localities that have passed paid sick time laws. The consensus or common theme among most laws is to define family member as a child, spouse, parent, legal guardian, grandparents, and grandchildren.
ERIC respectfully requests that the proposed Local Law follow suit and maintain uniformity with laws that have already been passed and in place for years. This would lessen the patchwork of laws that large, multistate employers must navigate when complying with countless different laws in multiple jurisdictions, while also recognizing the evolution of the modern American family and its expansion past nuclear members.
b. Maximum Accrual
The proposed Local Law sets the minimum amount of earned sick time an employer with ten or employees must provide at 72 hours in a calendar year. Of the almost ten states and over forty localities that have paid sick leave laws, only five jurisdictions have a similar accrual amount. Almost all of the others laws and ordinances across the country provide for accrual of 40 to 56 hours in a calendar year (the average is 40 hours).
This requirement would make Albany County a burdensome outlier, rather than a leader, from most of the other jurisdictions. ERIC therefore respectfully requests that the minimum amount of earned sick time provided be lowered to at least 56 hours. This would better bring Albany County in line with the rest of the country, ensure the greatest level of uniformity for employers that operate across the country, and lessen any administrative burdens on employers.
The Local Law as written provides that paid sick time that has been earned but unused by the end of the year must either be carried over or paid out by an employer. If the latter option is chosen, employers must not only pay employees for the time but must also provide them with “an amount of paid sick time that meets or exceeds the requirements of this section that is available for the employee’s immediate use at the beginning of the subsequent year.”
When large, multistate employers are forced to carryover employees’ unused time, it impacts the total leave package the employer currently provides. Paid sick time is traditionally contemplated alongside, and is meant to dovetail with short and long-term disability plans; thus, a change in one is a change in all three. The recommended alternative, is allowing employers to frontload all available time that employees would accrue over the course of the year and not mandating carryover if they do. When employers frontload time, they do so without generally allowing for carryover, which creates a “use-it-or-lose-it” policy. This type of policy allows employees to use time on an as-needed basis, rather than waiting for it to accrue over the course of the year. This system creates a great benefit to the employee, without imposing any unnecessary burdens on the employer.
The proposed Local Law already provides for frontloading, but contains no guidance on how that provision should interact with the one on carryover. ERIC would respectfully requests linking these two provisions in the following way: “An employer may not be required to allow an employee to carryover unused earned sick time under this law if the employer awards the employee the full amount of earned sick time at the beginning of each year that he or she would have accrued over the year as required under this law.”
The proposed Local Law alternatively allows unused leave to be “cashed out” at the employer’s discretion, but this is inconsistent with all other paid sick leave laws across the country (e.g. California, Connecticut, and Washington all mandate carryover of unused leave, with no similar alternative). Employers should not have to choose between altering employees’ leave packages and incurring a financial loss. The former would be sacrificing the employee’s ability to use leave when medically necessary, while the latter essentially amounts to compensating an employee for unused sick leave once employment has ended, something current paid sick leave laws and this Local Law do not require.
d. Existing Paid Leave & Paid Time Off Policies
ERIC is thankful that the proposed Local Law includes a provision that recognizes and protects employers with existing paid leave or paid time off policies that already satisfy the accrual and use requirements of the Local Law.
ERIC appreciates the opportunity to provide comments on your proposed Local Law. We welcome the opportunity to work with your office in crafting rules that benefits all employees in Albany County without increasing the compliance and financial burdens on employers already satisfying the underlying intent and purpose of the law.
If you have any questions concerning this letter, or if we can be of further assistance, please contact me at firstname.lastname@example.org or (202) 627-1917.
Senior Vice President, Retirement & Compensation Policy