UPDATED!
Originally published 1/2/2019; updated 2/8/2019
Additions/changes in red.
The Health and Human Services & Public Safety Committee (HHS & PS) has been working to fine-tune the proposed Earned Paid Sick Leave ordinance since April of 2018. Now, after many months of feedback, consideration, and work, we have an updated draft ready for another public hearing. That hearing took place on January 8, 2019 at at 5:30pm in Council Chambers at City Hall, 389 Congress Street.
After the public hearing, the committee made a few more changes to the ordinance, which have been added to the original article below.
You can download the current draft of the ordinance here.
To help you wade through the changes, I've provided a section by section guide below. I've also written a quick rundown of what the ordinance does—and what it doesn't do—in a separate blog post.
After the public hearing, the committee made a few more changes to the ordinance, which have been added to the original article below.
You can download the current draft of the ordinance here.
To help you wade through the changes, I've provided a section by section guide below. I've also written a quick rundown of what the ordinance does—and what it doesn't do—in a separate blog post.
You can read straight through the article, or jump to the section that interests you most using the links below.
- Section 1: Definitions
- Section 2: Accrual of Earned Paid Sick Time
- Section 3: Use of Earned Paid Sick Time
- Section 4: Procedures for Taking Earned Paid Sick Time
- Section 5: Exercises of Rights Protected; Retaliation Prohibited
- Section 6: Notice of Rights
- Section 7: Recordkeeping Requirements
- Section 8: Enforcement
- Sections 9-13: No Significant Changes
- Section 14: Effective Date
Section 1. Definitions
The committee's first change here was to the definition of "Family member." Our goal was to have a broad definition of family that was easy to understand. We simplified the original language by borrowing wording from New Jersey's state ordinance and separating "Child" and "Parent" out into their own separate definitions.
We also made two changes to the definition of "Employee."
The first change stipulates that an employee must work at least 60 hours in a calendar year in order to be eligible for EPSL as mandated in the ordinance.
The second change exempts some per diem workers from the ordinance. The only per diem workers exempted in this draft are those who satisfy ALL of the following conditions:
At our January 8th meeting, we recognized a need to clarify the way in which employers with physical locations in and out of Portland would need to handle the accrual and tracking of EPSL for employees who split time between those locations.
Corporation Counsel has suggested including a definition of "Hours Worked" as follows: "All hours worked where the employee is located at, or based out of, an employer’s place of business located in Portland."
We'll be discussing this approach at our February 12th meeting.
We also made two changes to the definition of "Employee."
The first change stipulates that an employee must work at least 60 hours in a calendar year in order to be eligible for EPSL as mandated in the ordinance.
The second change exempts some per diem workers from the ordinance. The only per diem workers exempted in this draft are those who satisfy ALL of the following conditions:
- They are licensed by Title 32, Chapters 31, 97, or 103 of the Maine Revised Statutes;
- They are employed in a "health care facility" as defined in MRS Title 22, Section 328;
- They are under no obligation to work a regular schedule;
- They only work when they indicate they can and aren't obligated to work at other times; AND
- They receive higher pay than another employee at the same health care facility performing the same work.
- Additional criteria for exempting a per diem worker, specifically, that the worker needs to have either been offered full-time or part-time work and have turned it down to be a per diem worker; OR that the per diem worker has waived EPSL benefits in favor of a different benefit.
- An exemption for work study students or students who are earning money or educational credits as part of a financial aid or job training program.
At our January 8th meeting, we recognized a need to clarify the way in which employers with physical locations in and out of Portland would need to handle the accrual and tracking of EPSL for employees who split time between those locations.
Corporation Counsel has suggested including a definition of "Hours Worked" as follows: "All hours worked where the employee is located at, or based out of, an employer’s place of business located in Portland."
We'll be discussing this approach at our February 12th meeting.
Section 2. Accrual of Earned Paid Sick Time
The original draft of the EPSL ordinance stated that employees would earn 1 hour of earned paid sick time for every 30 hours worked. The committee stuck with the 1:30 ratio, and to make it easier for employers to implement, we added new methods that can be used to track and award EPSL. The three ways employers can track and award EPSL are:
- Track all hours worked and award 1 hour of EPSL for every 30 hours worked. (This amounts to a .033 accrual rate, which is pretty easy to institute if you have an HR department or a payroll company that can simply plug the accrual rate into an algorithm to track it for you.)
- Award all of the hours up front at the beginning of each employee or calendar year. This eliminates tracking altogether, but some employers may prefer to have employees accrue EPSL over time instead of front-loading it.
- Award EPSL monthly in lump sums at the end of each month according to the chart we created and inserted into the ordinance in Section 2(a)3. After our January 8th meeting, I made some tweaks to this chart to simplify it and make the accrual amounts more consistent with the time frames in which the hours would be accrued naturally using the 1:30 accrual rate method. We'll discuss these changes at our February 12th meeting.
While the original draft allowed employees to earn up to 48 hours of EPSL annually, the current draft of the ordinance states that employees can earn up to 72 hours annually.
At our January 8th meeting, the committee settled on 40 hours as the maximum amount of EPSL time an employee can take in any one year. Employees can still earn—and bank—up to 72 hours a year, but they can never take more than 40 hours in a single 365 day period.
At our January 8th meeting, the committee settled on 40 hours as the maximum amount of EPSL time an employee can take in any one year. Employees can still earn—and bank—up to 72 hours a year, but they can never take more than 40 hours in a single 365 day period.
The committee instituted a waiting period of 45 days before employees are allowed to begin using their EPSL. All employees still begin accruing EPSL immediately.
At our February 12th meeting, the committee will consider whether or not to extend the waiting period for using EPSL from 45 days to 90 days.
At our February 12th meeting, the committee will consider whether or not to extend the waiting period for using EPSL from 45 days to 90 days.
Finally, the committee added language clarifying that employers who already have PTO or EPSL policies that meet the standards of this ordinance do not need to make changes.
Section 3. Use of Earned Paid Sick Time
While the committee clarified the language in this section, the only significant change was to account for the treatment of tipped workers. We added the provision that tipped workers who take EPSL will be paid at the highest applicable minimum wage for non-tipped employees.
We cleaned this up at our February 12th meeting to ensure that tipped workers are paid at either their regular base wage or the highest applicable minimum wage, whichever is higher. The concern was that some tipped workers are paid base salaries that are higher than the current minimum wage. We didn't want their EPSL benefits to be paid differently.
We cleaned this up at our February 12th meeting to ensure that tipped workers are paid at either their regular base wage or the highest applicable minimum wage, whichever is higher. The concern was that some tipped workers are paid base salaries that are higher than the current minimum wage. We didn't want their EPSL benefits to be paid differently.
Section 4. Procedures for Taking Earned Paid Sick Time
The committee increased from 5 to 7 days the advance notice an employee may be required to give for using EPSL for foreseeable reasons.
To eliminate concerns around employers requiring documentation to back up an employee's use of EPSL—and who would pay for the potential healthcare costs associated with obtaining such documentation--the committee created a verification form employees and employers can use to certify the use of EPSL. A draft copy of this form is included in the committee packet for the January 8, 2019 meeting. (It's the very last page of the packet. Scroll waaaaaaayy down.)
Employers can still request documentation from a health care provider if an employee is out for more than 24 consecutively scheduled work hours, but if the employee does not have health insurance, the form we created can be used by the employee instead.
Typically, employers cannot withhold EPSL pay while waiting for a doctor's note or other form of certification that the time was used appropriately. On January 8th, we considered adding language to allow employers to wait on paying out EPSL time if the time is taken during an employee's last two weeks of work. Here is the suggested language we'll be discussing at our February 12th meeting.
Employers can still request documentation from a health care provider if an employee is out for more than 24 consecutively scheduled work hours, but if the employee does not have health insurance, the form we created can be used by the employee instead.
Typically, employers cannot withhold EPSL pay while waiting for a doctor's note or other form of certification that the time was used appropriately. On January 8th, we considered adding language to allow employers to wait on paying out EPSL time if the time is taken during an employee's last two weeks of work. Here is the suggested language we'll be discussing at our February 12th meeting.
- The employer shall not delay the taking of earned sick time or delay pay for the period in which earned sick time was taken on the basis that the employer has not yet received the certification. “However, where an employee requests to take earned sick time in his/her last two weeks of employment, the employer may require the employee to submit documentation prior to approving and/or paying for the earned sick time.”
Section 5. Exercises of Rights Protected; Retaliation Prohibited
No changes to this section.
Section 6. Notice of Rights
The committee is still considering the best way to word translation requirements for notices and posters related to the ordinance, so while those sections are highlighted in the redline copy, we haven't yet made changes to them.
Here's what we came up with on January 8th:
"The notice and poster shall be provided in any language that is the first language spoken by any member of the employer’s workforce, provided that such notice has been created by the City of Portland. Where the City of Portland has not created the notice in any language readily understood by an employee, the employer must ensure that the contents of the notice are read and/or explained to the employee in a language the employee can readily understand."
"The City of Portland shall create and make available to employers, in the five most prevalent languages spoken by the City’s workforce and any language deemed appropriate by the City of Portland, model notices and posters meeting the requirements of this section."
Here's what we came up with on January 8th:
"The notice and poster shall be provided in any language that is the first language spoken by any member of the employer’s workforce, provided that such notice has been created by the City of Portland. Where the City of Portland has not created the notice in any language readily understood by an employee, the employer must ensure that the contents of the notice are read and/or explained to the employee in a language the employee can readily understand."
"The City of Portland shall create and make available to employers, in the five most prevalent languages spoken by the City’s workforce and any language deemed appropriate by the City of Portland, model notices and posters meeting the requirements of this section."
Two changes we did make in this section were: a) to clarify that every day the ordinance is violated will count as a separate offense and therefore be subject to additional fines; and b) to require that the amount of EPSL an employee has available be disclosed to them on a monthly basis, or upon request of the employee.
The original language required EPSL numbers to appear on every paystub, which could prove onerous for employers without HR departments or an outside company handling their payroll.
The original language required EPSL numbers to appear on every paystub, which could prove onerous for employers without HR departments or an outside company handling their payroll.
Section 7. Recordkeeping Requirements
We shortened the amount of time that employers are required to retain employment records related to EPSL from six years to three years. This aligns better with current employment law.
We also made it clear that companies that don't track sick time separately from other paid time off don't need to change their recordkeeping methods. This goes back to the provision in Section 2 stating that employers who are already meeting the mandates of this ordinance don't need to change the way they're doing things.
We also made it clear that companies that don't track sick time separately from other paid time off don't need to change their recordkeeping methods. This goes back to the provision in Section 2 stating that employers who are already meeting the mandates of this ordinance don't need to change the way they're doing things.
Section 8. Enforcement
Because it is prohibited by state law for a municipality to institute fines that would be paid to a private individual (as the original ordinance language mandated), the committee removed the unlawful language in Section 8(b).
Also, because the City of Portland does not have a Department of Labor to investigate and prosecute claims, the committee made changes to clarify the City of Portland's role in enforcement.
Here's how enforcement works in the current draft.
While the city still has the authority and the ability to investigate claims and institute fines that would be paid to the City (i.e., $100 per violation per day), the city is not obligated to do so in every instance. Similarly, employees with grievances are no longer required to go through the city in order to file a court claim. They can take their case directly to court through a private right of action.
When employees do bring their grievances to the city, which is definitely an option, a representative of the city will reach out to the employer in question and make sure the employer understands the requirements of the EPSL ordinance. The city representative can attempt to mediate a resolution between the employer and the employee, but if they are unable to do so, they can instead write a letter explaining their findings and their view as to whether or not the ordinance has been violated. This letter can then be provided to the employee and employer for use in the private right of action if necessary.
Also, because the City of Portland does not have a Department of Labor to investigate and prosecute claims, the committee made changes to clarify the City of Portland's role in enforcement.
Here's how enforcement works in the current draft.
While the city still has the authority and the ability to investigate claims and institute fines that would be paid to the City (i.e., $100 per violation per day), the city is not obligated to do so in every instance. Similarly, employees with grievances are no longer required to go through the city in order to file a court claim. They can take their case directly to court through a private right of action.
When employees do bring their grievances to the city, which is definitely an option, a representative of the city will reach out to the employer in question and make sure the employer understands the requirements of the EPSL ordinance. The city representative can attempt to mediate a resolution between the employer and the employee, but if they are unable to do so, they can instead write a letter explaining their findings and their view as to whether or not the ordinance has been violated. This letter can then be provided to the employee and employer for use in the private right of action if necessary.
Section 9-13
No significant changes to these sections.
Section 14. Effective Date
If you look closely, you'll see that the effective date hasn't been changed from the original ordinance language. It still says July 1, 2018.
In most other places where EPSL ordinances have been enacted, there has been a delayed implementation ranging from 180 days to one year or longer. Some communities have staggered their implementation, putting the ordinance into place for businesses of a certain size first and working their way down to smaller businesses over time. Other communities have begun by requiring businesses to offer a certain number of EPSL hours in the first year, building up to the target number in the second or third year of implementation.
The committee will talk about all of these options and determine the effective date of the ordinance once we are ready to make a recommendation to the Council.
On January 8th, the committee inserted language that would have the ordinance take effect 180 days after it is passed by the Council. We chose that time frame in order to make sure businesses would have time to prepare and factor extra expenses into their budgets.
In most other places where EPSL ordinances have been enacted, there has been a delayed implementation ranging from 180 days to one year or longer. Some communities have staggered their implementation, putting the ordinance into place for businesses of a certain size first and working their way down to smaller businesses over time. Other communities have begun by requiring businesses to offer a certain number of EPSL hours in the first year, building up to the target number in the second or third year of implementation.
The committee will talk about all of these options and determine the effective date of the ordinance once we are ready to make a recommendation to the Council.
On January 8th, the committee inserted language that would have the ordinance take effect 180 days after it is passed by the Council. We chose that time frame in order to make sure businesses would have time to prepare and factor extra expenses into their budgets.
That's It.
So that's where we are right now.
Personally, I still anticipate a few changes at the committee level before we make a recommendation to the full council. What we hear during the upcoming public hearing—and read in the comments that continue to pour in via email, and learn from continued conversations with people with varying viewpoints—will certainly impact our final revisions.
So please, take a look at all of the information, see what you think, and come tell us on January 8th.
Personally, I still anticipate a few changes at the committee level before we make a recommendation to the full council. What we hear during the upcoming public hearing—and read in the comments that continue to pour in via email, and learn from continued conversations with people with varying viewpoints—will certainly impact our final revisions.
So please, take a look at all of the information, see what you think, and come tell us on January 8th.
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