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A dozen states in the past three years have banned local governments from forcing private employers to provide paid sick leave benefits.
This article was originally published by Stateline, an initiative of The Pew Charitable Trusts, and was written by Alayna Alvarez.
A split is growing between cities that want to require private companies to give workers paid sick days and states that are determined to stop them.
In the last three years, a dozen states have banned localities from passing paid leave requirements, more than doubling to 22 the states that now outlaw such local ordinances. The push for so-called preemption laws is backed by the Koch brothers and the American Legislative Exchange Council, a membership organization of state legislators who favor limited government.
The state moves come in response to the increasing number of cities and counties passing paid sick days ordinances. Since 2015, more than 20 cities, as well as eight states, have approved measures mandating that companies provide local workers with paid sick leave. Since San Francisco approved the first paid sick leave ordinance in 2006, paid sick day requirements have been passed in 35 cities or counties and 11 states.
Backers of required sick leave say they’re giving an essential health benefit to workers—one that will improve public health by keeping ill employees at home. Opponents say paid sick leave will cost employers too much, and that a patchwork of conflicting local and state policies will only cause confusion.
“There’s a real pitched battle going on in a lot of places right now between cities that have decided that they really want to protect workers’ rights and workers’ health, and state legislatures that don’t want to interfere with businesses at all,” said Sherry Leiwant, co-founder and co-president of A Better Balance, a New York-based group that supports paid leave. “We’re seeing that more and more, and I think we’re going to keep seeing that.”
The United States is the only developed country without a national paid leave law, says the International Labour Organization, a United Nations agency. Nearly a third of all workers in the United States don’t have paid sick days, according to the American Journal of Orthopsychiatry. Yet, bipartisan support for the benefits is higher than ever. Ninety-four percent of Democratic voters and nearly 80 percent of Republican voters favor paid sick leave laws, according to a 2015 New York Times-CBS News poll.
A handful of states that prohibit local sick leave ordinances, including Maryland, Oregon, Rhode Island and New Jersey, do require businesses to provide sick leave, but bar cities from going beyond the state requirements. Other states, such as Wisconsin, don’t have a state rule and prohibit cities from passing their own.
In 2008, voters in Milwaukee approved a paid sick leave measure with support from nearly 70 percent of voters, making the city the third in the country, behind San Francisco and Washington, D.C., to approve one. But in 2011, newly elected Republican Gov. Scott Walker and the GOP-led Legislature reversed the Milwaukee measure and approved a law to preempt other Wisconsin cities from following its lead.
The clash over paid sick leave is part of a broader divide between conservative states and their more liberal cities on a wide range of issues, including minimum wage laws, fracking, plastic bag bans, municipal broadband and anti-discrimination ordinances that protect lesbian, gay, bisexual and transgender residents.
‘Another Form of Voter Suppression’
Earlier this month, in a political maneuver that some called unprecedented, Michigan lawmakers enacted a law requiring paid sick days only to block a similar ballot initiative from being put to voters Nov. 6. The Republican-led Legislature likely will roll back the measure.
By passing the law to provide paid sick leave to nearly 2 million workers, Michigan lawmakers stopped a ballot initiative that, if passed, they would need a three-fourths majority to overturn. Instead, they need only a majority to undo the law they passed before it goes into effect.
“I’ve never seen anything like this,” said Robert Sedler, a law professor at Wayne State University in Detroit. “This is like a bait and switch.”
Christina Hayes, a Detroit mother who was diagnosed with lupus at age 19 and has since become an advocate for paid sick leave, said the move felt like “little punches” to those who spent months going door to door to help gather petition signatures.
Ellen Bravo, executive director of Family Values at Work, a nonprofit pushing for paid leave reforms nationwide, called the move “another form of voter suppression” and “a new level of dirty tricks.”
But Wendy Block, a lobbyist for the Michigan Chamber of Commerce, defended lawmakers. “You look at this proposal on its face and you say, ‘Oh, mandatory sick leave—it must be a good thing.’ But, really, the devil is in the details,” she said, referring to the ballot measure.
“A one-size-fits-all policy is really not appropriate for our state,” she said. Some employers provide more generous leave policies than would be allowed under the proposal, while other employers can’t afford the leave time they’d be forced to offer, according to Block.
“The proposal in Michigan really is the most extreme that has been introduced yet in this country,” she said, “and full of lots of legal landmines.”
The proposal requires one hour of paid sick leave for every 30 hours worked; applies to all employees and independent contractors; and allows employees to use their time in as little as 6-minute increments.
Paid-leave advocates increasingly are turning to ballot initiatives to bypass resistant legislatures. Excluding Michigan, three of the 10 states to require paid sick time—Massachusetts in 2014, and Arizona and Washington in 2016—did so through citizen-led ballot initiatives.
An ‘Uneven Expansion’
Overall, the number of U.S. workers with paid sick leave is growing, but the availability of the benefit varies by region. Seventy-five percent of private industry workers in the Northeast and 81 percent of private industry workers in the West have access to paid sick leave, according to the U.S. Department of Labor, compared with 67 percent in the South and 64 percent in the Midwest.
Workers in rural areas are less likely than workers in cities and suburbs to have five or more paid sick days, according to a 2011 brief by the Carsey School of Public Policy at the University of New Hampshire.
The growing movement is “really starting to show a story of the uneven expansion of these policies,” said Shilpa Phadke, vice president of the Women’s Initiative at the Center for American Progress, a left-leaning think tank in Washington, D.C. “And what that does is remind us why we really need the federal baseline.”
With a federal sick leave measure stalled in Congress and stiff resistance in Republican-led states, more cities are acting on their own.
Cities Take the Lead
In San Antonio last month, the city council—prompted by a local ballot initiative that gathered more than 144,000 signatures in favor of paid sick leave, enough for the measure to appear on the ballot in November—passed a paid sick leave ordinance and became the second city in Texas, behind Austin, to do so. And in Dallas, organizers in July aimed for a ballot initiative to provide paid sick leave to the estimated 41 percent of workers without it, but did not gather enough signatures.
The Austin ordinance is currently tied up in Texas’ 3rd Court of Appeals after the Texas Public Policy Foundation filed a lawsuit last month arguing that the measure violates the Texas Constitution and state law.
Robert Henneke, the foundation’s general counsel, said a paid sick leave mandate is unnecessary. “Especially with as competitive a job market as Austin is and as low as our unemployment is, businesses here already have to compete very fiercely for good, qualified employees and to be able to keep and retain those employees. The way they do so is offering different types of compensation packages and benefits that can help them in being fully staffed and competitive in the workforce.”
Because proponents of the paid leave ordinance such as the Texas Organizing Project and Working Texans for Paid Sick Time have pushed the Austin proposal’s language in other Texas cities, Henneke said the court’s decision will be “very influential in addressing the same ordinance in San Antonio, if one’s adopted in Dallas, and potentially Houston.”
“There’s a weaponization of municipal governments and an abuse of power by cities that are doing this without any real data or evidence to show a need,” he added.
But Leiwant of A Better Balance said shackling cities prevents localities from acting as laboratories, where the effectiveness of new policies like paid sick leave can be tested. If the ordinances work, “you can have them implemented on the state level or even the federal law, so it’s really a bad thing to cut local control off like some of these states have been doing.”
Preemption laws are typically backed by business groups that say mandated paid leave impedes flexible approaches to meeting employees’ needs and hurts businesses’ bottom line.
“Paid leave mandates impose an especially onerous burden on staffing firms, because they must track the hours of large numbers of employees on short-term, intermittent job assignments for purposes of leave accrual and utilization,” said Stephen Dwyer, the general counsel for the American Staffing Association, a national business group that’s among the lead plaintiffs that challenged the Austin ordinance.
But in cities that have passed paid sick leave requirements, some studies have shown that impacts on employers have been minimal.
In San Francisco, for instance, where workers are given up to nine days paid sick leave a year, the average worker takes only three sick days, according to a 2011 study by the Institute for Women’s Policy Research, a social science research institute. And businesses reported “minimal impacts” setting up the new policy, an Urban Institute study found.
Similarly, in New York City, the typical worker takes three paid sick days, according to a 2016 study by the left-leaning Center for Economic and Policy Research. And more than 4 in 5 employers supported the law.
In Seattle, most employers said that paid sick leave was easy to set up, a study by the University of Washington found. Though about a third of employers reported having trouble working with payroll vendors and carrying out other administrative requirements. The costs to businesses overall were “modest and smaller than anticipated.”
Today, for the average two-earner family in the United States without paid sick leave, taking 3.5 unpaid sick days means losing a month’s worth of groceries, according to a briefing paper by the Economic Policy Institute, a left-leaning think tank in Washington, D.C.
Times are changing, said Vicki Shabo, the vice president for workplace policies and strategies at the National Partnership for Women and Families. When the push for paid sick leave began, “it was a fringy issue,” she said, and now “it’s become more mainstream.”
But Shabo knows the battles will continue.
“It’s not over,” she said.
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