Fiscal Note
[enter Fiscal Note here]
Title
Creating Section 3.57 of the Madison General Ordinances to provide employment protection for sickness-related workplace absences.
Body
DRAFTER'S ANALYSIS: This ordinance would prohibit employers from discharging or disciplining employees for taking time off of work for personal health/medical reasons or for the purpose of caring for a family member's health/medical needs. This ordinance does not require an employer to compensate such an employee for such an absence. An employee must provide reasonable and timely notice of their absence in order to receive the protections/benefits of this ordinance. Additionally, employers and employees could opt out from compliance with this ordinance through explicit language in a collective bargaining agreement. Enforcement of this ordinance would be provided through a complaint process within the Equal Opportunities Division and through forfeiture actions brought by the City Attorney's Office. The enactment of this ordinance may require revisions to the City's Civil Service and related ordinances.
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The Common Council of the City of Madison do hereby ordain as follows:
Section 3.57 entitled "Employment Protection For Sickness Related Workplace Absences" of the Madison General Ordinances is created to read as follows:
"3.57 EMPLOYMENT PROTECTION FOR SICKNESS RELATED WORKPLACE ABSENCES.
(1) Declaration of Policy. The Common Council has determined that Madison workers need occasional, short-term leave from work to attend to their own health care needs or those of their family. Such leave promotes a public purpose by advancing the public health, productivity, and well being of the residents and visitors of the City. Such leave provides the necessary rest and/or medical attention that will shorten the duration and impact of illnesses. Additionally, routine preventive health care helps avoid illnesses and injuries and detects illnesses early on to shorten their duration. Furthermore, parents, who can take leave to care for their ill children promote their children's more rapid recovery from illness, prevent the development of more serious illnesses and improve their children's overall mental health and well-being. Parents who cannot take such leave have no other option but to send their ill children to childcare or school, thus contributing to the spread of infections and illnesses in childcare centers, schools and the general community. However, daycare providers and schools prohibit sick children from attending their facilities and require parents to pick up children who become sick during the school day. The lack of protections to workers for calling in sick has forced many Madison workers; particularly low-wage earners, to make untenable choices between their jobs or caring for their own and/or their family's health. This ordinance will give Madison's workers an opportunity to regain their health, return to full productivity at work, and avoid spreading illnesses to their co-workers without the fear that their absence from their workplace will cost them their job. Thus, this ordinance produces broad public benefits and benefits employers by increasing retention of trained employees, reducing absenteeism, increasing productivity, promoting worker commitment, improving customer service and, in the long term, should reduce employers' overall expenses due to employee absenteeism.
(2) Definitions. As used in this section:
(a) "Complainant" means any person who has filed a complaint with the Division in which they allege an employer has committed a violation of the provisions of this ordinance.
(b) "Division" means the Department of Civil Rights Equal Opportunities Division.
(c) "Employer" means and includes every person, firm or corporation, agent, manager, representative, contractor, subcontractor or principal, or other person which maintains a place of business or whose employees perform work or service for the employer within the City, and the employer has control or direction of one (1) or more employee in any pay period, who is employed at any labor or responsible directly or indirectly for the employment of another and who does not have an ownership interest in the business. The term "Employer" does not include the state, its political subdivisions and any office, department, independent agency, authority, institution, association, society or other body in state or local government, other than the City of Madison, created or authorized to be created by the constitution or any law, including the legislature and the courts.
(d) "Employee" means any person who may be required or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, or to go or work at any time in any place of employment and who performs compensable work in the City of Madison for an employer.
(e) "Family Member" means the following relatives of an employee:
1. Parents; to include biological, adoptive, foster, step, parents-in-law, legal guardians to the employee;
2. Spouse or domestic partner as that term is defined in sec. 3.23(2)(n), M.G.O.;
3. Minor children to include the biological, foster, adopted, stepchildren, legal wards, or the children of the employee's domestic partner.
4. Children over the age of 18 years who are incapable of self-care because of a permanent or long-term physical or mental disability;
5. Siblings;
6. Grandparents
par g) "Sick leave" means an increment of leave provided by an employer to an employee for use by the employee during an absence from employment for any of the permissible reasons provided by this ordinance.
(3) Protected Work Place Absences. An employer may not terminate nor discipline any employee who is absent from the workplace for any of the reasons permitted under subsection 3.57( 6) and where the employee has complied with the notice provisions of subsection 3.57(5). This protection applies to only the first five such occurrences of absences by an employee during any calendar year.
(4) Effect of Other Forms of Leave. An employer may require an employee who is absent from the work place due to any reason permitted under subsection 3.57(6) to reduce any accrued leave balance to cover for that work place absence.
(5) Employee To Provide Notice of Intent To Use Sick Leave. Employees shall make reasonable efforts to schedule absences under this ordinance where possible with the employer in a manner that does not unduly disrupt the employer's operations. Whenever such scheduling is impossible or impracticable, employees shall provide their employers with as much advance written or verbal notice of their need to be absent as is reasonable and practical under the circumstances then existing.
(6) Appropriate Workplace Absences. Employees may be absent from the workplace under this ordinance for the diagnosis, care, treatment or convalescing of the employee or an employee's family member, who is suffering from a physical or mental illness, injury, or medical ailment or condition
(7) Employer May Require Documentation. An employer may require that any absence that is either anticipated to last more than three (3) consecutive days or which actually lasts for more than three (3) consecutive days be supported by documentation issued by a health care professional certifying that the employee or the employee's family member satisfied any one of the conditions in Subsection (6). The employee shall provide such documentation to the employer in a timely manner, not later than ten (10) days after the first day of the absence. The employer shall not delay the commencement of the absence on the basis that the employer has not yet received such documentation. If an employer requires such documentation and the employee is not covered by a policy of health care insurance that would cover the full medical and direct costs associated with obtaining such documentation, the employer shall reimburse such employee for any such expenses incurred in obtaining such documentation. An employer may require an employee to provide proof and/or documentation of such unreimbursed medical and direct costs before reimbursing the employee for such items.
(8) Posting Requirements. Each employer shall post and keep posted, in a conspicuous place in each employer's work site a poster notice prepared by the Division and shall include in all employee handbooks, manuals or orientation materials, the contents of such poster notice. Such poster notice shall set forth:
(a) Information describing leave available to employees under this ordinance;
(b) Information pertaining to the filing of a complaint under this ordinance;
(c) The documentation requirements for foreseeable and unforeseeable leave under Subsection (7);
(d) The protections that an employee has for exercising rights under this ordinance.
(9) Education and Outreach. The Division shall prepare a poster described in subsection (8) and the Division shall develop a plan for community outreach and education by no later than November 1, 2008. Such outreach plan shall be submitted to the Common Council for its approval. The goal of this outreach and education program shall be to reasonably inform community employers and employees of their rights and responsibilities under this ordinance.
(10) Ability of Employers To Provide Other Benefits. Nothing contained in this ordinance prohibits an employer from providing more generous benefits to an employee than are required by this ordinance. Nothing in this ordinance shall be construed to diminish the obligation of an employer to comply with any contract, collective bargaining agreement, employee benefit program or plan. An employer may not eliminate or reduce leave in existence on the date this ordinance is adopted, regardless of the type of such leave, in order to comply with this ordinance. Except as may be otherwise provided herein or in subsection (12) of this ordinance, the rights of employees established by this ordinance shall not be diminished, reduced or otherwise altered by any contract, employment benefit program or plan.
(11) Record Keeping Requirements and Availability of Employer Records. Each employer shall maintain sufficient records to establish their compliance with this ordinance. Such records shall be made available for inspection and copying by any authorized employee of the Division or Office of the City Attorney, during the regular business hours of the employer and upon ten (10) days written request of either the Division or of the Office of the City Attorney to inspect and copy such records.
(12) Collective Bargaining Agreements. This ordinance may be superseded and made inapplicable, in whole or in part, by an expressed declaration to such effect in any signed collective bargaining agreement between an employer and an employee's collective bargaining unit/labor organization. Such expressed declaration must state with specificity and by explicit reference to the ordinance sections herein, the provisions of this ordinance the parties intend that their agreement will supersede and render inapplicable. Any collective bargaining agreement that is in effect on the date that this ordinance becomes effective shall be presumed to comply with the requirements of this subsection and shall therefore supersede and make inapplicable the applications of this ordinance for the remainder of the term of said collective bargaining agreement.
(13) Investigation and Administrative Adjudication of Violations
(a) Enforcement by Division. The Division shall have the following authority:
1. Any person who believes that their rights under this ordinance have been denied or interfered with may file a complaint with the Division alleging a violation of this ordinance and the Division shall investigate the matter and take all proceedings necessary to enforce the provisions of this ordinance. The Division shall have the authority to investigate, adjudicate and dispose of any complaint filed alleging a violation of this ordinance. If the Division finds that the Respondent has violated this ordinance, it shall make written findings and order such action by the Respondent as will redress the injury done to the Complainant, bring the Respondent into compliance with the ordinance and generally effectuate the purpose of this ordinance. The Division shall not accept any complaint filed more than three hundred (300) days after the date of the alleged violation of this ordinance.
2. Whenever the Division determines that an employer has committed a violation of this ordinance, in addition to the penalty provisions provided herein, the Division may award to the complainant the amount of wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation and/or award such equitable relief as may be appropriate, including re-employment, reinstatement, and promotion. The Division may award such equitable relief as it determines is necessary to make whole all employees of an employer who has been determined to have committed violation(s) of this ordinance, irrespective of whether said employees were the complainants before the Division.
3. The Division may adopt such rules and regulations as may be necessary to carry out the purpose and provisions of this ordinance.
4. The Division may, upon determining that a violation of this ordinance has occurred, refer such violation to the City Attorney. The City Attorney, at his/her discretion, may thereafter pursue an action in the Madison Municipal Court to recover a forfeiture for such violation.
(b) Definition of a Violation. Each day or portion thereof, for which an employee was entitled to be absent from the workplace, but for which time period the employee was denied such absence or was discriminated against, disciplined, discharged or in any other manner retaliated against for exercising or attempting to exercise rights under this ordinance shall constitute a separate and distinct violation of this ordinance. Each day that an employer fails to comply with any other duty imposed upon such employer under this ordinance shall constitute a separate and distinct violation of this ordinance.
(14) Penalties.
(a) Posting Violation. Any employer who violates the posting requirement set forth in Subsection (4) of this ordinance shall be subject to a forfeiture in an amount not to exceed $100 for each separate offense.
(b) Employee Rights. No employer may discharge or threaten to discharge, or in any way discriminate, or threaten to discriminate against any employee because the employee has filed a complaint alleging a violation of this ordinance, has otherwise asserted his or her rights under this ordinance, has informed any other employee of his or her rights under this ordinance, has testified or is about to testify, or because the employer believes that the employee may testify, in any investigation or proceeding relative to the enforcement of this ordinance. Any employer who engages in such prohibited activity is guilty of a violation of this ordinance, and upon conviction thereof shall be subjected to a forfeiture of not less than $25 nor more than $2,500 for each offense.
(c) Other Provisions. Any employer who fails to comply with any provision of this ordinance, other than those violations set forth under subsections (12)(a) and (12)(b), shall be subject to a forfeiture of not less than $100 nor more than $500 for each separate offense.
(15) Severability. In the event that any term, section or application of this ordinance is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such term, section or application shall be deemed a separate, distinct and independent term, section or application and the balance of this ordinance shall be deemed modified to that extent and to the extent that the remainder of this ordinance can be given effect without the invalid or unconstitutional provisions or applications. It is hereby declared the intent of the Common Council that this section would have been adopted had any invalid or unconstitutional provision or applications not been included herein.
(16) Effective Date. This ordinance shall become effective on January 1, 2008."