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Local Paid Sick Leave Preempted by State

posted on Wed, Jun 1 2011 11:39 am by Andy Baker-White

Sick Leave Preemption

Earlier this year I wrote about the efforts of several cities to enact paid sick leave ordinances and wondered how widely these type of ordinances would spread. Well, even if a local government adopts a paid sick leave ordinance there is a chance state law will end up preempting it. This is what recently happened to Milwaukee’s local paid sick leave ordinance in Wisconsin.

Milwaukee voters adopted a paid sick leave ordinance in 2008 with over 70 percent of votes in favor of it. The ordinance faced legal challenges and a lawsuit focusing on the ordinance’s constitutionality wound its way through the Wisconsin courts, to the Wisconsin Supreme Court and remanded to the Court of Appeals. In March of this year the 4th District Court of Appeals upheld the ordinance’s constitutionality.  An appeal by opponents was almost certain.

However, before the issue’s surrounding ordinance could again be heard by Wisconsin’s Supreme Court the Wisconsin Legislature passed Senate Bill 23 to preempt local governments from adopting paid sick leave laws. Wisconsin Governor Scott Walker signed the bill on May 5, 2011, thereby invalidating Milwaukee’s paid sick leave ordinance.

Wisconsin proponents of paid sick leave are now turning their attention to advocating for federal legislation for paid sick leave. On May 12, 2011, Rep. Rosa DeLauro from Connecticut and Sen. Tom Harkin from Iowa introduced the Healthy Families Act, (H.R. 1876, S. 984). The Healthy Families Act allows employees to earn one hour of paid sick leave for every 30 hours worked and employees can accrue up to 56 hours or seven days of paid sick leave a year. The law would apply to employers who employ 15 or more employees and would not preempt state or local laws that provide greater paid sick leave rights.

Even with the setback suffered by Milwaukee’s paid sick leave ordinance and the unlikelihood that a federal paid sick leave law would make it through the divided houses of Congress, several cities are moving ahead with or exploring the issue.  Seattle, Washington is currently considering a paid sick leave law and this November voters in Denver, Colorado will decide whether they should have paid sick leave.

This information was developed by Andy Baker-White, assistant director for the Network for Public Health Law – Mid-States Region at the University of Michigan School of Public Health.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

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