MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Workforce Development; Judiciary A
By: Representative Cockerham
AN ACT TO CREATE THE "HEALTHY AND SAFE FAMILIES WORKPLACES ACT" TO ENSURE THAT EMPLOYEES IN MISSISSIPPI CAN ADDRESS THEIR OWN HEALTH AND SAFETY NEEDS, AS WELL AS THE HEALTH AND SAFETY NEEDS OF THEIR FAMILY MEMBERS, BY REQUIRING EMPLOYERS TO ALLOW EMPLOYEES TO EARN A MINIMUM LEVEL OF PAID LEAVE TIME INCLUDING TIME TO CARE FOR THEIR FAMILY MEMBERS AND ALLOW FOR EASE AND UNIFORMITY OF ADMINISTRATION FOR THE BUSINESS COMMUNITY IN PROVIDING PAID LEAVE FOR THEIR EMPLOYEES; TO PROVIDE FOR DEFINITIONS AND EXEMPTIONS; TO ESTABLISH THE MINIMUM PAID SICK AND SAFE LEAVE TIME; TO PROVIDE FOR THE USE OF PAID SICK AND SAFE LEAVE TIME; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Healthy and Safe Families Workplaces Act."
SECTION 2. The purpose of this act is to ensure that employees in Mississippi can address their own health and safety needs, as well as the health and safety needs of their family members, by requiring employers to allow employees to earn a minimum level of paid leave time including time to care for their family members and allow for ease and uniformity of administration for the business community in providing paid leave for their employees.
SECTION 3. For purposes of this act, the following words and terms shall have the meaning described herein, unless the context requires otherwise:
(1) "Care recipient" means a person for whom the employee is responsible for providing or arranging health- or safety-related care, including, but not limited to, helping the person obtain diagnostic, preventive, routine, or therapeutic health treatment or ensuring the person is safe following domestic violence, sexual assault, or stalking.
(2) "Child" means a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, or a son or daughter of an employee who stands in loco parentis to that child.
(3) "Department" means Mississippi Department of Employment Security.
(4) "Domestic violence" means certain crimes when committed by one (1) family or household member against another as defined in Section 43-17-5.
(5) "Employee" means any person suffered or permitted to work by an employer, except "employee" shall not include:
(a) Any individual employed in domestic service or in or about a private home;
(b) Any individual employed by the United States;
(c) Any individual engaged in the activities of an educational, charitable, religious, or nonprofit organization where the employer-employee relationship does not, in fact, exist, or where the services rendered to the organizations are on a voluntary basis;
(d) Newspaper deliverers on home delivery, shoe shiners in shoe shine establishments, caddies on golf courses, pin persons in bowling alleys, ushers in theatres;
(e) Traveling salespersons or outside salespersons;
(f) Service performed by an individual in the employ of his or her son, daughter, or spouse and service performed by a child under the age of twenty-one (21) in the employ of his or her father or mother;
(g) Any individual employed between May 1 and October 1 in a resort establishment that regularly serves meals to the general public and that is open for business not more than six (6) months a year;
(h) Any individual employed by an organized camp that does not operate for more than seven (7) months in any calendar year. However, this exemption does not apply to individuals employed by the camp on an annual, full-time basis. "Organized camp" means any camp, except a trailer camp, having a structured program including, but not limited to, recreation, education, and religious, or any combination of these.
(i) Independent contractors, subcontractors, work study participants as described pursuant to 42 USC Section 2753.23, apprenticeships and interns as defined under Fair Labor Standards Act Section 3(g).
(6) "Employer" means any individual or entity that includes any individual, partnership, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer, in relation to an employee as defined in this section, but does not include the federal government, and provided that in determining the number of employees performing work for an employer as defined in 29 C.F.R. Section 791.2. of the Federal Fair Labor Standards Act, 29 USC Section 201 et seq., the total number of employees in that group shall be counted.
(7) "Family member" means a child, parent, spouse, mother-in-law, father-in-law, grandparent(s), grandchildren, sibling(s), care recipient, or member of the employee's household.
(8) "Health care professional" means any person licensed under federal or Mississippi law to provide medical or emergency services, including, but not limited to: doctors, nurses, and emergency room personnel.
(9) "Paid sick leave time" or "paid sick and safe leave time" means time that is compensated at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked and is provided by an employer to an employee for the purposes described in Section 6 of this act, but in no case shall the hourly wage paid leave be less than that provided under the Fair Labor Standards Act.
(10) "Parent" means a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stands in loco parentis to the employee or the employee's spouse when he/she was a child or parent of the employee's spouse.
(11) "Seasonal employee" means a person as defined in 26 C.F.R. Section 54.4980H-1(a)(38).
(12) "Sexual assault" means an act as defined in Section 45-33-23(h) as a sex offense.
(13) "Sibling" means a brother or a sister, whether related through half blood, whole blood, or adoption, a foster sibling, or a step-sibling.
(14) "Stalking" means an act as defined in Section 97-3-107 or Section 97-45-15.
(15) "Temporary employee" means any person working for, or obtaining employment pursuant to an agreement with any employment agency, placement service, or training school or center.
(16) "Unpaid sick time" is time that is used for the purposes described in Section 6 of this act.
(17) "Year" means a regular and consecutive twelve-month-period as determined by the employer; except that for the purposes of Section 7 of this act, "year" means a calendar year.
SECTION 4. (1) Any employer with a paid leave time off policy or paid sick and safe leave policy who makes available at least twenty-four (24) hours during calendar year 2020, thirty-two (32) hours during calendar year 2021 and forty (40) hours per calendar year thereafter of paid time off or paid sick and safe leave time to employees or any employer who offers unlimited paid time off or paid sick and safe time is exempt from subsections (1), (2), (3) and (5) of Section 5 of this act. Employers that provide at least twenty-four (24) hours during calendar year 2020, thirty-two (32) hours during calendar year 2021, and forty (40) hours per calendar year thereafter of paid sick or safe leave or paid time off that can be used for the purposes consistent with this act at the beginning of each benefit year do not need to track accrual, allow any carryover, or payout.
(2) Any employer that employs less than eighteen (18) employees as defined in this act is exempt from Section 5 of this act; provided, however, that any such employer shall not take an adverse action against an employee of the employer solely based upon the employee's use of up to twenty-four (24) hours during calendar year 2020, thirty-two (32) hours during calendar year 2021, and forty (40) hours per calendar year thereafter, subject to provisions of Sections 6 and 10 of this act.
(3) Any employer is not required to provide any paid sick and/or safe leave time to any employees who are employed by a municipality or the state.
(4) Any employer in the construction industry, as classified as code under the North American Industry Classification System, is not required to provide any paid sick and/or safe leave time to any employees who work under a collective bargaining agreement until July 1, 2020.
(5) Any employee licensed to practice nursing pursuant to Chapter 15 of Title 73 is not subject to the provisions of this chapter if the employee:
(a) Is employed by a health care facility;
(b) Is under no obligation to work a regular schedule;
(c) Works only when he or she indicates that he or she is available to work and has no obligation to work when he or she does not indicate availability; and
(d) Receives higher pay than that paid to an employee of the same health care facility performing the same job on a regular schedule.
SECTION 5. (1) All employees employed by an employer of eighteen (18) or more employees in Mississippi shall accrue a minimum of one (1) hour of paid sick and safe leave time for every thirty-five (35) hours worked up to a maximum of twenty-four (24) hours during the calendar year of 2020, thirty-two (32) hours during calendar year 2021, and up to a maximum of forty (40) hours per year thereafter, unless the employer chooses to provide a higher annual limit in both accrual and use. In determining the number of employees who are employed by an employer for compensation, all employees defined in subsection (5) of Section 3 of this act shall be counted.
(2) Employees who are exempt from the overtime requirements under 29 USC Section 213(a)(1) of the Federal Fair Labor Standards Act, 29 USC Section 201 et seq., will be assumed to work forty (40) hours in each work week for purposes of paid sick and safe leave time accrual unless their normal work week is less than forty (40) hours, in which case paid sick and safe leave time accrues based upon that normal work week.
(3) Paid sick and safe leave time as provided in this act shall begin to accrue at the commencement of employment or pursuant to the effective date of this act, whichever is later. An employer may provide all paid sick and safe leave time that an employee is expected to accrue in a year at the beginning of the year.
(4) An employer may require a waiting period for newly hired employees of up to ninety (90) days. During this waiting period, an employee shall accrue earned sick time pursuant to this section or the employer's policy, if exempt under Section 4 of this act, but shall not be permitted to use the earned sick time until after he or she has completed the waiting period.
(5) Paid sick and safe leave time shall be carried over to the following calendar year; however, an employee's use of paid sick and safe leave time provided under this act in each calendar year shall not exceed twenty-four (24) hours during calendar year 2020, and thirty-two (32) hours during calendar year 2021, and forty (40) hours per year thereafter. Alternatively, in lieu of carryover of unused earned paid sick and safe leave time from one (1) year to the next, an employer may pay an employee for unused earned paid sick and safe leave time at the end of a year and provide the employee with an amount of paid sick and safe leave time that meets or exceeds the requirements of this chapter that is available for the employee's immediate use at the beginning of the subsequent year.
(6) Nothing in this chapter shall be construed as requiring financial or other reimbursement to an employee from an employer upon the employee's termination, resignation, retirement, or other separation from employment for accrued paid sick and safe leave time that has not been used.
(7) If an employee is transferred to a separate division, entity, or location within the state, but remains employed by the same employer as defined in 29 C.F.R. Section 791.2. of the Federal Fair Labor Standards Act, 29 USC Section 201 et seq., the employee is entitled to all paid sick and safe leave time accrued at the prior division, entity, or location and is entitled to use all paid sick and safe leave time as provided in this act. When there is a separation from employment and the employee is rehired within one hundred thirty-five (135) days of separation by the same employer, previously accrued paid sick and safe leave time that had not been used shall be reinstated. Further, the employee shall be entitled to use accrued paid sick and safe leave time and accrue additional sick and safe leave time at the re-commencement of employment.
(8) When a different employer succeeds or takes the place of an existing employer, all employees of the original employer who remain employed by the successor employer within the state are entitled to all earned paid sick and safe leave time they accrued when employed by the original employer, and are entitled to use earned paid sick and safe leave time previously accrued.
(9) At its discretion, an employer may loan sick and safe leave time to an employee in advance of accrual by such employee.
(10) Temporary employees shall be entitled to use accrued paid sick and safe leave time beginning on the one hundred eightieth calendar day following commencement of their employment, unless otherwise permitted by the employer. On and after the one hundred eightieth calendar day of employment, employees may use paid sick and safe leave time as it is accrued. During this waiting period, an employee shall accrue earned sick time pursuant to this act, but shall not be permitted to use the earned sick time until after he or she has completed the waiting period.
(11) Seasonal employees shall be entitled to use accrued paid sick and safe leave time beginning on the one hundred fiftieth calendar day following commencement of their employment, unless otherwise permitted by the employer. On and after the one hundred fiftieth calendar day of employment, employees may use paid sick and safe leave time as it is accrued. During this waiting period, an employee shall accrue earned sick time pursuant to this chapter, but shall not be permitted to use the earned sick time until after he or she has completed the waiting period.
SECTION 6. (1) Paid sick and safe leave time shall be provided to an employee by an employer for:
(a) 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;
(b) Care of a family member with a mental or physical illness, injury, or health condition; care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; care of a family member who needs preventive medical care;
(c) Closure of the employee's place of business by order of a public official due to a public health emergency or 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 having jurisdiction or by a health care provider that the employee's or family member's presence in the community may jeopardize the health of others because of their exposure to a communicable disease, whether or not the employee or family member has actually contracted the communicable disease; or
(d) Time off needed when the employee or a member of the employee's family is a victim of domestic violence, sexual assault, or stalking.
(2) Paid sick and safe leave time shall be provided upon the request of an employee. Such request may 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.
(3) When the use of paid sick and safe leave time is foreseeable, the employee shall provide notice of the need for such time to the employer in advance of the use of the sick and safe leave time and shall make a reasonable effort to schedule the use of sick and safe leave time in a manner that does not unduly disrupt the operations of the employer.
(4) An employer that requires notice of the need to use earned paid sick and safe leave 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 and safe leave time to the employee based on noncompliance with such a policy.
(5) Unless otherwise in conflict with state or federal law or regulations, an employee may decide how much sick time to use; provided, however, that an employer may set a minimum increment for the use of sick time, not to exceed four (4) hours per day, provided such minimum increment is reasonable under the circumstances.
(6) For paid sick and safe leave time of more than three (3) consecutive work days, an employer may require reasonable documentation that the paid sick and safe leave time has been used for a purpose covered by subsection (1) of this section if the employer has notified the employee in writing of this requirement in advance of the employee's use of paid sick and safe leave time. An employer may not require that the documentation explain the nature of the illness or the details of the domestic violence, sexual assault, or stalking unless required by existing government regulation or law. Nothing in this provision shall be construed to conflict with existing government regulation or law.
(a) An employer may require written documentation for an employee's use of earned sick leave time that occurs within two (2) weeks before an employee's final scheduled day of work before termination of employment.
(b) Documentation signed by a health care professional indicating that paid sick leave time is necessary shall be considered reasonable documentation under paragraph (a) of this subsection (6).
(c) One of the following, of the employee's choosing, shall be considered reasonable documentation of an absence under subsection (1)(d) of this section:
(i) An employee's written statement that the employee or the employee's family member is a victim of domestic violence, sexual assault, or stalking and that the leave taken was for one (1) of the purposes of subsection (1)(d) of this section;
(ii) A police report indicating that the employee or employee's family member was a victim of domestic violence, sexual assault, or stalking;
(iii) A court document indicating that the employee or employee's family member is involved in legal action related to domestic violence, sexual assault, or stalking; or
(iv) A signed statement from a victim and witness advocate affirming that the employee or employee's family member is receiving services from a victim services organization or is involved in legal action related to domestic violence, sexual assault, or stalking.
(7) An employer's requirements for verification may not result in an unreasonable burden or expense on the employee and may not exceed privacy or verification requirements otherwise established by law.
(8) Paid sick and safe leave time cannot be used as an excuse to be late for work without an authorized purpose.
(9) If an employee is committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for paid sick and safe leave time in this section, an employer may discipline the employee, up to and including termination of employment for misuse of sick leave.
(10) If an employee is exhibiting a clear pattern of taking leave on days just before or after a weekend, vacation, or holiday, an employer may discipline the employee for misuse of paid sick and safe leave, unless the employee provides reasonable documentation that the paid sick and safe leave time has been used for a purpose covered by subsection (1) of this section.
(11) An employer may not require, as a condition of providing earned paid sick and safe leave time under this chapter, that the employee search for or find a replacement worker to cover the hours during which the employee is using paid sick and safe leave time. However, if an employee is absent from work for any reason listed in subsection (1) of this section and by mutual consent of the employer and the employee, the employee works an equivalent number of additional hours or shifts during the same or the next pay period as the hours or shifts not worked due to reasons listed in subsection (1) of this section, an employee shall not be required to use accrued and earned paid or unpaid sick time for the employee's absence during that time period, and the employer shall not be required to pay for sick leave time taken during the time period.
SECTION 7. No county or municipality shall establish, mandate, or otherwise require an employer to provide benefits in excess of those required under this chapter, including paid sick and safe leave time to its employees, other than the paid sick and safe leave time requirements provided by this act, or to apply sick and safe leave time policies to statutorily exempt employees and workers.
SECTION 8. (1) The department shall coordinate implementation and enforcement of this act and shall promulgate necessary rules and regulations for such purposes.
(2) Enforcement and notice requirements pursuant to this act shall be in accordance with enforcement and notice requirements established by the department.
(3) Any employee or former employee aggrieved by a violation of the provisions of this act shall be entitled to the protections and relief established by the department.
(4) An employer who violates this act shall be liable for a civil penalty in an amount not less than One Hundred Dollars ($100.00) for the first violation, and each subsequent violation shall be subject to the penalties determined by the department.
SECTION 9. An employer may not require disclosure of details relating to domestic violence, sexual assault, sexual contact, or stalking or the details of an employee's or an employee's family member's health information as a condition of providing paid sick and safe leave time under this act. If an employer possesses health information or information pertaining to domestic violence, sexual assault, sexual contact, or stalking about an employee or employee's family member, such information shall be treated as confidential and not disclosed except to the affected employee or with the permission of the affected employee unless required by existing regulation or statute.
SECTION 10. (1) Nothing in this act shall be construed in a manner to discourage or prohibit an employer from the adoption of a paid sick and safe leave time policy that provides greater rights or benefits than those provided pursuant to this act.
(2) Nothing in this act shall be construed as diminishing the obligation of an employer to comply with any contract, collective bargaining agreement, employment benefit plan or other agreement that provides greater sick and safe leave time to an employee than required in this act.
(3) Nothing in this act shall effect the provisions for leave for state employees provided in Sections 25-3-91 through 25-3-103.
SECTION 11. The department shall develop and implement a multilingual outreach program to inform employers, employees, parents, and persons who are under the care of a health care provider about the availability of paid sick and safe leave time under this act. This program shall include the distribution of notices and other written materials in English and in all languages spoken by more than five percent (5%) of Mississippi's population and any language deemed appropriate by the department to all child care and elder care providers, domestic violence shelters or victim services organizations, schools, hospitals, community health centers, and other health care providers.
SECTION 12. (1) Employers may have different paid leave policies for different groups of employees, provided that all policies meet the minimum requirements of this chapter.
(2) Employers that prefer not to track accrual of paid sick and safe leave time over the course of the benefit year may also use the following schedules for providing lump sums of sick leave or paid time off to their employees. Employers using these schedules will be in compliance even if an employee's hours vary from week to week. For employees working an average of:
(a) Thirty-seven and one-half (37.5) to forty (40) hours per week, provide eight (8) hours per month for five (5) months;
(b) Thirty (30) hours per week, provide five (5) hours per month for eight (8) months;
(c) Twenty-four (24) hours per week, provide four (4) hours per month for ten (10) months;
(d) Twenty (20) hours per week, provide four (4) hours per month for nine (9) months;
(e) Sixteen (16) hours per week, provide three (3) hours per month for ten (10) months;
(f) Ten (10) hours per week, provide two (2) hours per month for ten (10) months;
(g) Five (5) hours per week, provide one (1) hour per month for ten (10) months.
(3) In the case of an employer whose regular work day for full-time employees is less than eight (8) hours per day, if the employer provides five (5) days of paid sick and safe leave time consisting of the number of hours per day that constitute that full-time employee's work day and provides them at the beginning of the year, the employer shall be in compliance with this section.
(4) Employers that provide forty (40) or more hours of paid time off or vacation to employees that also may be used as paid sick and safe leave time, consistent with this section, shall not be required to provide additional sick leave time to employees who use all their time for other purposes and have need of paid sick and safe leave time later in the year, provided that the employers' leave policies make clear that additional time will not be provided.
SECTION 13. If any provision of this act or any rule or regulation created under this act, or the application of any provision of this act to any person or circumstance shall be held invalid by any court of competent jurisdiction, the remainder of the act, rule or regulation and the application of such provision to other persons or circumstances shall not be affected thereby. The invalidity of any section or sections or parts of any section of this act shall not affect the validity of the remainder of this act and to this end the provisions of the chapter are declared to be severable.
SECTION 14. This act shall take effect and be in force from and after July 1, 2019.