Airlines Say State Sick Leave Laws For Flight Crews Could Delay Your Flight — The Supreme Court May Have To Settle It

Michigan’s Earned Sick Time Act went into effect last year. It specifically includes airlines in the businesses that it covers, and applies even on top of union contracts, although can be delayed until the amendable date of already in force labor agreements.

It’s part of a trend of state laws, like overtime laws, that seek to layer on benefits for airline employees on top of what they negotiate for themselves in collective bargaining. And airlines are fighting back, arguing that federal law forbids the practice. There are generally two paths:

• Airline Deregulation Act. For sick time rules, the argument is that regulating how time off works affects airline services, and anything touching schedule, service, or pricing is expressly preempted by federal law.

• Railway Labor Act. For state minimum wage laws, airlines argue that the federal law which governs their labor relations says that if it’s necessary to interpret a collective bargaining agreement (such as ‘what counts as an hour worked’ to determine overtime pay under the stat law) then the state can’t meddle.

  This is considered the stronger argument than claims that overtime rules are preempted by the Airline Deregulation Act, because they’re further afield from regulation of schedules, service and pricing. The Court of Appeals for the Ninth Circuit ruled in 2021 (Bernstein v. Virgin America 3 F.4th 1127) that California labor law could govern pay for California-based flight attendants over ADA preemption arguments even as applied to meal and rest break rules.

Whether or not these federal rules stand in the way of state regulation is being litigated throughout the country.

Airline lobbying group Airlines For America won an important ruling in Michigan that they had a viable Airline Deregulation Act preemption argument against the state’s sick time law in Air Transport Association of America v. Susan Corbin, No. 1:25-cv-01945.

• The law requires accrual of one hour of paid sick time per 30 hours worked (up to 72 hours per year); covers illness, injury, diagnosis, treatment and preventive care for employees and family members, domestic violence and sexual assault needs, school meetings and public health closures; prevents an employer from requiring the employee to find a replacement worker; and prohibits treating protected leave as an attendance violation or other adverse factor.

  Airline flight crew are presumed to have worked 40 hours under this law. At airlines like American, sick time accrues ‘attendance points’ that can lead to employment job actions.

• The airline lobbying group argues that the law “encourages employees to use and potentially abuse sick leave, and thus to be absent from work more frequently.” This affects operational performance, and snowballs because crew work several legs at a time in sequence. Ground employees perform airine “services” like ticketing, gate and boarding functions, maintenance, etc.

  Union contracts and attendance programs allocate sick leave operational risk. The law trumps these systems, risking delays and cancellations, degraded passenger service, and potentially altered schedules, routes or prices.

The Airline Deregulation Act precludes state laws “related to a price, route, or service of an air carrier.” The Supreme Court doctrine interprets “related to” broadly, allowing only state laws whose effects are merely “tenuous, remote, or peripheral.”

Crew availability is part of the airline’s ability to provide ticketing, boarding, baggage, in-flight transportation and on-time departure.

Michigan argues its sick leave law is regulating the employer–employee relationship, not the airline–passenger relationship. It doesn’t tell airlines what fare to charge, where to fly, or what onboard service to offer.

Airlines already deal with sick calls, weather, and staffing shortages with reserve and systems for replacing crew. Absences can disrupt a flight, but the sick law’s incremental effects should be marginal.

So which side wins? In the Sixth Circuit, Michigan has Wellons v. Northwest Airlines (1999) where the court refused to preempt the state’s employment discrimination rules against airline claims that applying it to reservation agents affected airline reservation services, saying that relationship was too tenuous.

That’s a rule governing whom an airline employs, not the immediate availability of a minimum required crew member which determines whether a flight can legally operate. But it’s precedent that cuts against the airlines.

Washington State won a similar case against the airline industry over its sick leave law at the Ninth Circuit. The Supreme Court declined to review.

Delta beat New York City’s sick leave law at the district court level in 2021, successfully claiming crew availability, boarding and on-time departure was directly connected with airline service. The airline lobbying group won after a trial in Massachusetts as well. There are live cases in Colorado, Minnesota, and Illinois.

Courts are disagreeing because it seems like some preemption of state rules is required by the Airline Deregulation Act, but it’s not clear what the limiting principle is.

• A law that makes it more difficult to meet minimum required crew requires affects whether transportation and passenger are provided gets preempted, or
  
• Every employment law affects employee availability, cost and operations. That’s not enough, because it means no state regulation would be allowed over airline employment.

Where the line between these positions ultimately gets drawn may wind up at the Supreme Court, because courts around the country are disagreeing that that patchwork could mean different rules for crew based in different states, which has affects of flights beyond each state’s borders and where airlines decide to base crews as well.