Arizona’s Paid Sick Time Law: What Home Health …...language “deemed appropriate” by the...

Arizona’s Paid Sick Time Law: What Home Health Care Providers Need to Know

Chad Grell, Esq.*[email protected]

(303) 749-7227*Licensed in Colorado

© 2 0 1 7 H u s c h B l ac k we l l L L P

The Fair Wages and Healthy Families Act

Approved by voters on November 8, 2016.

On March 14, 2017, the Arizona Supreme Court rejected a challenge by an employer‐backed group to Proposition 206. This is the law of the land.

Increases Arizona’s current hourly minimum wage of $8.05 in 4 steps to $12.00 by 2020, after which the rate increases by the cost of living.

Beginning July 1, 2017, Proposition 206 also requires Arizona employers to provide employees with paid sick time. • Ariz. Rev. Stat. §§ 23‐371 to ‐381.• https://www.azica.gov/frequently‐asked‐questions‐about‐wage‐and‐earned‐paid‐sick‐time‐laws


The Act in a Nutshell… Application of the

Act Notice Accrual Use Rollover Employer Rights Retaliation

Policy Revisions (Attendance, PTO, Sick Time)

Policy Integration Onboarding Administrative

Burden Training Discipline


Do the Act’s Requirements Apply? Unless you are the United States government or the

State of Arizona, yes. A.R.S. § 23-371.– Unlike with Arizona’s minimum wage requirements,

there is no exception for “Small Business.” “‘Employee’” means any person who is or was employed

by an employer . . . .”– Does not include anyone employed by a parent or a

sibling, or who provides babysitting services in the employer’s home on a casual basis. Ariz. Rev. Stat. Ann. § 23-362


How to Comply: General Notice Beginning July 1, 2017, employers must post an “Earned

Paid Sick Time” poster provided by the Arizona Industrial Commission.

– https://www.azica.gov/sites/default/files/AZ%20Earned%20Paid%20Sick%20Time%20Poster%202017.pdf

On July 1, 2017 (and afterwards, upon hire), employers must provide employees with written notice of the employer’s business name, address and telephone number; and

On July 1, 2017 (and afterwards, upon hire), employers must provide employees with a written notice that informs them of their rights and responsibilities under the Act.


How to Comply: Written Notice The written notice must inform employees:

– That they are entitled to earned paid sick time;

– The amount of earned paid sick time they are entitled to;

– How to use paid sick time as guaranteed by law;

– That retaliation against employees who request or use earned paid sick time is prohibited;

– That employees have the right to file a complaint if earned paid sick time is denied by the employer or the employee is retaliated against;

– How to contact the Industrial Commission. A.R.S. § 23-375.


How to Comply: Notice Issues Language: Notices must in English, Spanish, and any other

language “deemed appropriate” by the Industrial Commission (available on the Commission’s website).

Paycheck notice: On every regular paycheck (or on an attachment to the paycheck), employers must notify employees of:1. The amount of earned paid sick time available to the employee;2. The amount of earned paid sick time taken by the employee to date in the year; and3. The amount of pay the employee has received as earned paid sick time.


How to Comply: Tricky Notice Issues To protect the employer’s rights, notice (in the form of a policy)

should also be provided stating that:– Employees hired after July 1, 2017, must wait until the 90th

calendar day after commencing employment before using accrued earned paid sick time.

– Upon termination, employees will not receive payment for earned paid sick time that has not been used.

– Explains how requests for paid sick time can be made (orally, in writing, by electronic means, or any other means acceptable to the employer).

– Asks employees to include the expected duration of paid sick time absences requested.

– Asks employees to “make a good faith effort to provide notice of the need for” paid sick time when the need is foreseeable.

– Asks employees to “make a reasonable effort to schedule the use of earned paid sick time in a manner that does not unduly disrupt the operations of the employer.”


How to Comply: Policy Paid Leave Policy: Employers that have a paid time off

(“PTO”) policy do not need to provide additional paid sick time so long as their PTO policy:– Allows employees to use PTO for the same reasons and

under the same conditions that employees are allowed to use paid sick time under the Act; and

– The amount of PTO provided is equal to or greater than the amount of paid sick time that employees are entitled to under the Act. A.R.S. § 23-372(E).

Employers should seriously consider adopting a compliant PTO policy.


The Act’s Requirements: Accrual Employers with 15 or more employees:

Employees accrue a minimum of one hour of earned paid sick time for every 30 hours worked, to a maximum of 40 hours per year.

Employers with fewer than 15 employees: Employees accrue a minimum of one hour of earned paid sick time for every 30 hours worked, to a maximum of 24 hours per year.

Earned paid sick time begins to accrue on an employee’s first day of work, or July 1, 2017, whichever is later.

A.R.S. § 23-372(A)-(B), (D)(1).


The Act’s Requirements: Counting Who counts as an “employee?”

– All full-time, part-time and those employed on a “temporary basis” must be counted.

What if the number of employees fluctuates above and below 15 employees per week? – Must provide greater accrual rights if the employer

“maintained 15 or more employees on the payroll for some portion of a day in each of 20 different calendar weeks, whether or not the weeks were consecutive, in either the current or the preceding year (irrespective of whether the same individuals were in employment in each day).”

A.R.S. § 23-372(C).


The Act’s Requirements: Accrual forNon-Exempt and Exempt Employees

Non‐Exempt Employees: Accrual for “non‐exempt” employees is based off of the actual hours worked.

Exempt Employees: Are “assumed to work 40 hours in each work week for purposes of earned paid sick time accrual unless their normal work week is less than 40 hours, in which case earned paid sick time accrues based upon that normal work week.”

A.R.S. § 23‐372(D)(3).


What Happens to Earned Paid Sick Time?

Upon termination, employers do not have to pay out earned paid sick time that has not been used.

But, from year to year, “Earned paid sick time shall be carried over to the following year, subject to the limitations on” how much paid sick time employees may use under the Act.

A.R.S. § 23-372(D)(4), (F).


Are There Any Alternatives to All These Accrual Determinations? Yes!

“[A]n employer may pay an employee for unused earned paid sick time at the end of a year and provide the employee with an amount of earned paid sick time that meets or exceeds the requirements of [the Act] that is available for the employee's immediate use at the beginning of the subsequent year.”

A.R.S. § 23-372(D)(4).


The Act’s Requirements: UseEmployers with 15 or more employees: Employees shall not be

entitled to usemore than 40 hours of earned paid sick time per year.

Employers with fewer than 15 employees: Employees shall not be entitled to usemore than 24 hours of earned paid sick time per year.

Although employees begin to accrue paid sick time from their date of hire, employers may require an employee hired after July 1, 2017, to “wait until the ninetieth calendar day after commencing employment

before using accrued earned paid sick time.”

A.R.S. § 23‐372(A)‐(B), (D)(2).


The Act’s Requirements: When Can Paid Sick Time Be Used? Employees:

– For “an employee's mental or physical illness, injury or health condition; an employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; an employee's need for preventive medical care.” A.R.S. § 23-373(A)(1).

Beware broad language: What constitutes mental illness? A “health condition?” A “need for preventive medical care?” An “illness”?

There is no language requiring the illness to be serious or severe . . . .


The Act’s Requirements: When Can Paid Sick Time Be Used?

Employees’ Family Members:

– Paid sick time can be used for “care of a family member” who has the same medical or health needs that would justify an employee’s use of paid sick time:

Mental or physical illness, injury or health condition,

Need for medical diagnosis, care of treatment, or

Need for preventive medical care, etc.


The Act’s Requirements: Family Member Regardless of age, a child or foster child, stepchild or legal ward, a

child of a domestic partner, a child to whom the employee stands in loco parentis, or an individual to whom the employee stood in loco parentis when the individual was a minor;

A biological, foster, stepparent or adoptive parent or legal guardian of an employee or an employee's spouse or domestic partner or a person who stood in loco parentis when the employee or employee's spouse or domestic partner was a minor child;

A person to whom the employee is legally married under the laws of any state, or a domestic partner of an employee as registered under the laws of any state or political subdivision;

A grandparent, grandchild or sibling (whether of a biological, foster, adoptive or step relationship) of the employee or the employee's spouse or domestic partner; or

Any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

A.R.S. § 23-371(H).


The Act’s Requirements: When Can Paid Sick Time Be Used? Domestic violence, sexual abuse or stalking. Paid sick time can be used to allow the employee or

employee’s family member to obtain:– Medical attention needed to recover from physical or

psychological injury or disability caused by domestic violence, sexual violence, abuse or stalking;

– Services from a domestic violence or sexual violence program or victim services organization;

– Psychological or other counseling;– Relocation or taking steps to secure an existing home due

to the domestic violence, sexual violence, abuse or stalking; or

– Legal services, including, but not limited to, preparing for or participating in any civil or criminal legal proceeding.

– A.R.S. § 23-373(A)(3).


The Act’s Requirements: When Can Paid Sick Time Be Used? Miscellaneous Circumstances:

– Closure of the employee's place of business by order of a public official due to a public health emergency;

– An employee's need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency; or

– Care for oneself or a family member when it has been determined by the health authorities that the employee's or family member's presence may jeopardize the health of others because of his or her exposure to a communicable disease . . . .

– A.R.S. § 23-373(A)(3).


The Act’s Requirements: How Is Paid Sick Time Used? Employee Requests It.

– The request can be made orally, in writing, by electronic means, or by “any other means acceptable to the employer.”

– When possible, the request shall include the expected duration of the absence.

– When the need for leave is foreseeable, the employee “shall make a good faith effort to provide notice of the need for such time to the employer in advance,” and “shall make a reasonable effort to schedule the use of earned paid sick time in a manner that does not unduly disrupt the operations of the employer.”

– A.R.S. § 23-373(B)-(C).


The Act’s Requirements: How Is Paid Sick Time Used? Not Foreseeable:

– An employer that requires notice of the need to use earned paid sick time where the need is not foreseeable shall provide a written policy that contains procedures for the employee to provide notice. An employer that has not provided to the employee a copy of its written policy for providing such notice shall not deny earned paid sick time to the employee based on non-compliance with such a policy.

– A.R.S. § 23-373(D).


The Act’s Requirements: How Is Paid Sick Time Used? Increments Used

– Earned paid sick time may be used in the smaller of hourly increments or the smallest increment that the employer's payroll system uses to account for absences or use of other time.

– Ariz. Rev. Stat. Ann. § 23-373(F).


What Can Employers Do? Documentation. For earned paid sick time of three or more consecutive work

days, an employer may require reasonable documentation. – Documentation signed by a health care professional.– In cases of domestic violence, sexual violence, abuse or stalking, one of the

following types of documentation selected by the employee shall be considered reasonable documentation: A police report; A protective order or other evidence from a court or prosecutor; A signed statement from a domestic violence or sexual violence program

or victim services organization; A signed statement from a witness advocate; A signed statement from an attorney, member of the clergy, or a medical

or other professional; or An employee's written statement affirming that the employee or the

employee's family member is a victim of domestic violence, sexual violence, abuse, or stalking, and that the leave was taken for one of the purposes allowed by the Act.

– A.R.S. § 23-373(B).


What Can’t An Employer Do? An employer may not require, as a condition of an employee's

taking earned paid sick time, that the employee search for or find a replacement worker to cover the hours during which the employee is using earned paid sick time.

An employer may not require that required documentation explain the nature of the health condition or the details of the domestic violence, sexual violence, abuse or stalking.

A.R.S. § 23-373(E), (I).


What Can’t An Employer Do? Retaliate.

– Cannot interfere with, restrain, or deny the exercise of, or the attempt to exercise, any paid sick time right.

– No retaliation for: requesting or using paid sick time; filing a complaint with the commission or courts or otherwise

complaining to others; informing any person about any alleged employer paid sick time

violation; participating in an investigation; or informing any person about potential rights.

– Protections apply to any person who mistakenly, but in good faith, alleges violations.

– A.R.S. § 23-374.


What Can’t An Employer Do? Violate the Act through an absence policy.

– It shall be unlawful for an employer's absence control policy to count earned paid sick time taken under this article as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.

– A.R.S. § 23-374(C).

– May need to revise current policies or revisit practices.


What Can’t An Employer Do? Disclose confidential

information.– An employer may not require

disclosure of details relating to domestic violence, sexual violence, abuse or stalking, or the details of an employee's or an employee's family member's health information.

– If an employer possesses health information, it must be treated as confidential.

– A.R.S. § 23-377.


PenaltiesRecordkeeping and posting requirement violations: $250 for a first violation, and at least $1,000 for each subsequent or willful violation, as well as monitoring and inspections.

Failure to pay earned paid sick time: Must pay employee balance of earned paid sick time owed, interest, and an amount equal to twice the underpaid sick time.

Retaliation: Compensatory damages and an amount sufficient to deter future violations (not less than $150 for each day that the violation continues or until the legal judgment is final).

Civil action. Reasonable attorney’s fees and costs.

A.R.S. § 23‐364.


Miscellaneous

Cannot waive any rights under the Act• For severance/settlement agreements, that means you must obtain representations and warranties, and not a waiver.

Termination/Rehire• Transferred employees retain paid sick time.

• If rehire occurs within nine months of separation from the same employer, any previously‐accrued earned paid sick time that was not used must be reinstated and the employee is entitled to use and accrue earned paid sick time immediately at the re‐commencement of employment.

Records• Have to maintain records for four years.

QUESTIONS?

Thank You

Chad Grell, Esq.*[email protected]

(303) 749-7227*Licensed in Colorado

Husch Blackwell LLP © 2017. All rights reserved. This information is intended only toprovide general information in summary form on legal and business topics of the day.The contents hereof do not constitute legal advice and should not be relied on assuch. Specific legal advice should be sought in particular matters.

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