Arizona Paid Sick Leave: The Presumption of Retaliation

The Industrial Commission of Arizona has released FAQs regarding enforcement and implementation of the Fair Wages and Healthy Families Act (Act), which established a new minimum wage (effective January 1, 2017) and a new paid sick leave requirement (effective July 1, 2017).

Of particular concern for employers is the Industrial Commission’s guidance related to the retaliation provisions of the Act. The Act prohibits employers from engaging in retaliation or discrimination against an employee or former employee because the person has exercised protected paid sick leave rights (i.e., requesting or taking sick leave, filing a complaint, participating in an investigation, etc.). The Industrial Commission’s guidance elaborates on this prohibition on retaliation and suggests that employers taking adverse action against an employee within 90 days of the employee asserting a protected sick-leave right will be presumed to have retaliated against the employee. This presumption can only be overcome by clear and convincing evidence that the adverse action was based on a permissible reason.

This presumption places additional burdens on employers taking adverse action against employees who have used protected sick leave, even where the action is taken for a separate, legitimate reason. Employers will want to be sure that, in each case, they have sufficient documentation to establish the action was taken for a legitimate reason, unrelated to the exercise of leave rights.

The Industrial Commission’s guidance can be found here.

Arizona employers should begin reviewing their leave policies now to ensure compliance by July 1, 2017. Additionally, MSEC members who want more information on compliance with Arizona Paid Sick Leave are encouraged to attend MSEC’s Annual Employment Law Update Conference in Scottsdale on May 4, where we will have a session dedicated to the new leave law, including information on who is covered, what is required, and how the law impacts your existing leave policies. Please contact our office for more information.

MSEC will continue to report on developments in this area.