Albuquerque employers have come out in strong opposition to the proposed sick leave ordinance that is going to voters in October. Named the Healthy Workforce Ordinance, if approved in the elections, the ordinance would immediately become law. Written without input from local businesses, the proposed law carries a large cost and heavy burden for employers.
The purpose of this article is to outline many of the objections that business owners have cited for opposing this particular sick leave bill.
Overview of the Sick Leave Law
Under the Healthy Workforce Ordinance, all Albuquerque employers would be required to provide paid sick leave to their employees. This includes small and large employers. Covered employees include full and part time employees as well as temporary and seasonal employees. Employees would earn sick leave at the rate of 1 hour earned for every 30 hours worked.
Employees could accrue up to 56 hours of paid sick leave each year.
Small employers are those who have less than 40 employees while large employers are those with more than 40 employee. Small employees must provide up to 40 hours of paid sick leave while large employers must provide up to 56 hours each year of paid sick leave.
Employees would be able to take sick leave time for health needs, physical and mental, for themselves and for their family members. Employers are not allowed to ask for any type of documentation unless the employee uses 3 days or more. This includes employers not being allowed to ask for documentation when employees regularly take sick days around holidays, after vacation was denied, or sandwiching the weekends.
Problems with the Sick Leave Law
1. Assumed guilt by employers
Albuquerque’s sick leave law presumes that employers will retaliate against employees who use sick leave. As a result the proposed ordinance assumes employer guilt until proven innocent. The burden and cost of proof is born by the employer, who gets no recompense once they are proven innocent, while employers who are found guilty must bare not only their own costs, but up to triple the damages to the employee, the employee’s attorney fees and other city costs.
2. Assumed retaliation by employers
Because the ordinance assumes that employers will strike out against employees who take leave, it protects employees from any retaliation for at least 90 days after taking sick leave, requesting sick leave, or asking about sick leave rights.
Jason Espinoza, the President and CEO of New Mexico Association of Commerce and Industry stated, that “There are times when a manager must, well, manage his or her employees, and doing so doesn’t always involve rewards. Sometimes managing an employee to get the best performance or to ensure a safe workplace requires a reprimand. Sometimes, for the welfare of the organization, managing requires terminating an employee.”
The proposed ordinance would make it very difficult for businesses to reprimand or terminate any employee who has taken sick leave without excessive documentation of the employees wrongs and errors.
3. Imposes excessive costs on employers
The Healthy Workforce Ordinance, backed by the unions, imposes a heavy cost to employers who are not union employers. The estimated cost to Albuquerque business runs at about 38 million dollars annually, according to the numbers provided by the proponents of the measure.
This money will be paid by small and large businesses alike and like many other measures, may ultimately be paid by those workers who represent the lowest wage segment of the population. This is because small and medium sized businesses rarely have huge profit margins and large employers are typically already providing sick leave benefits and keeping the required records already.
4.Qualified employees accruing sick leave outside the city.
The proposed sick leave law defines which employees are eligible, those who work inside Albuquerque at least 56 hours a year or more. However, it does not address when employees earn sick leave.
If an employee works in Albuquerque and qualifies for sick leave, but spend the majority of their working hours outside the city, the employer may have to let that employee continue to accrue sick leave at the rate of 1 hour for every 30 hours worked. Most other ordinances specify that sick leave is earned only during the time worked inside the covered area.
The Healthy Workforce Ordinance does not do this.
That means employers may be required to pay substantially more sick leave pay for employees that only occasionally work in city limits than they would be otherwise required to do. In addition, employers will have to maintain the adequate records to prove compliance.
5.Existing plans are unlikely to conform with the proposed ordinance
Although an estimated 50% of Albuquerque employees already have paid sick leave or PTO that can be used for sick leave, most of those plans won’t qualify for the new measure for various reasons. The new measure requires that new employees start accruing sick leave on the first date of employment.
It requires employers to bank unused sick leave when an employee leaves a company and to reinstate it for up to 12 months if the employee is rehired. Employees who don’t use sick leave can roll sick leave from year to year. The new measure doesn’t limit the amount of time that employees can roll from year to year. Any existing policy that limits sick leave from rolling more than the standard 5 days would have to be re-written.
6.Rolling Sick Leave from year to year.
The Healthy Workforce Ordinance does not specify a maximum amount of sick leave that can be rolled from year to year. In theory an employee who doesn’t use sick leave could accrue massive amounts of unused sick leave after a few years. This could create a large burden on a business who has to track the continuously rolled sick leave and who suddenly finds themselves paying for a large paid absence from that employee.
7.Employees can sue employers for damages.
Instead of simply seeking redress for damages through the City’s Attorney’s Office, the ordinance allows employees to sue employers for perceived wrongs. When the employer is found guilty, and there is assumed guilt written into the ordinance, the employer is responsible for the employee’s attorney fees, damages, civil penalties, and three times the sick leave denied.
When the employer prevails and is found innocent, there is no relief back to the employer. The employer must still bear the cost of proving innocence and their attorney’s fees.
Record Keeping Requirements of Healthy Workforce Ordinance
The proposed ordinance would require all employers, even those with 1 employee, to maintain certain records. Employers would have to maintain and provide to employees, including part time, seasonal and temporary, sick leave accrual and usage.
Employers have to track sick leave accrual, usage and balance for all employees. This means tracking employee hours to prove correct rate of accrual. Employers have to track how sick leave was used and whether it was used for a non-covered reason under the ordinance or a covered reason. Employers would have to maintain records of employee pay and rate of pay for sick leave taken for each pay period.
Records have to start on the first date of employment as sick leave accrual starts then.
Let SwipeClock Help
Although the details to which employers would have to track payroll records can be intimidating and is virtually impossible for manual record keeping, SwipeClock provides a seamless system to track and maintain those records.
This means that businesses who have employees in Albuquerque can easily and effectively track all data required by the ordinance. In fact, SwipeClock’s software often saves employers more than just the cost of the software and becomes a valuable investment.
In addition to the proposed requirements, Albuquerque employers also must comply with Federal Overtime Laws, the Family Medical Leave Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.
Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according to the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
Written by Annemaria Duran. Last updated August 7, 2017