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Considerations for Employers Implementing Federal, State and Local Paid Sick Leave Laws in Response to COVID-19 Pandemic

05.12.2020

Many employers continue to grapple with the interaction between the new federal leave laws, newly enacted state and local laws, and other paid sick leave policies employers may have had in place prior to the pandemic. As a recap, the Families First Coronavirus Response Act (the “FFCRA”) went into effect on April 2, 2020. The FFCRA provides for two kinds of leave related to COVID-19: Emergency Paid Sick Leave and Emergency Family and Medical Leave. Under the new laws, private employers with less than 500 employees must provide qualified employees up to two weeks of Emergency Paid Sick Leave at full pay, up to a $511-per-day, for various reasons tied to COVID-19 and at partial pay up to $200 a day to care for family members affected by COVID-19. Additionally, the FFCRA temporarily amends the Family and Medical Leave Act (“FMLA”) to provide qualified employees an additional 10 weeks of leave at partial pay, up to $200 per day, to care for children whose schools or care providers have closed due to the pandemic (“Emergency FMLA Leave”). The law is in effect until December 31, 2020. For more information on the FFCRA, see Koley Jessen’s previous News Flashes on this topic.

The U.S. Department of Labor (“DOL”) recently issued guidance related to how the FFCRA should work in conjunction with leave policies that employers already may have had in place. The new federal legislation does not diminish any obligation an employer may have under state or local laws with respect to providing paid leave.

Under this guidance, the DOL explained that, during the first two weeks of unpaid Emergency FMLA Leave, an employee may not simultaneously take paid Emergency Paid Sick Leave and preexisting employer-provided paid leave unless the employer agrees to allow the employee to supplement the employee’s Emergency Paid Sick Leave with preexisting paid leave. Even if the employer and employee agree to such an arrangement, in no event may an employee receive more than the employee’s normal earnings. After the first two weeks of Emergency FMLA Leave, however, the employee may elect—or be required by the employer—to take the remaining Emergency FMLA Leave at the same time as any existing employer-provided paid leave that, under the employer’s policies, would be available in such a circumstance. The DOL explained that this would likely include personal leave or paid time off.

The DOL has further explained that, if an employee is required to take existing employer-provided leave concurrently with the employee’s remaining Emergency FMLA Leave, the employer must pay the full amount to which the employee is entitled under the employer’s existing paid leave policy for the period of leave taken. If an employee exhausts the employer’s existing paid leave and still is entitled to additional Emergency FMLA Leave, the employer must pay at least 2/3 of employee’s pay for subsequent periods of Emergency FMLA Leave taken, up to $200 per workday and $10,000 in the aggregate.

In addition to the foregoing, employers must also be mindful that many states have enacted emergency legislation in response to COVID-19 that broadens sick leave requirements for many employers, regardless of size. A couple of recent state and local responses to note: 

California

Los Angeles – on April 7, 2020, the Los Angeles city council passed a supplemental paid sick leave law that provides up to 80 hours of supplemental paid sick leave to full-time employees who work within the city of Los Angeles. Covered employers are those with more than 500 employees nationally (i.e., those employers not governed by the FFCRA). Employees must have been employed from Feb. 3 to Mar. 4. Certain healthcare providers and first responders are not covered under the ordinance. The new law is in effect until December 31, 2020, unless the city council renews it.

San Francisco – San Francisco recently passed an emergency leave ordinance similarly aimed at providing coverage for employees not covered under the FFCRA. The new ordinance provides eligible employee who work within the City and County of San Francisco up to 80 hours of supplemental paid leave for reasons related to COVID-19. The ordinance remains in effect until the 61st day following enactment, unless it is reenacted, or the public health emergency is terminated. Amendments to this ordinance made on April 14, 2020 are currently awaiting the mayor’s signature.

Colorado

The Colorado Health Emergency Leave with Pay Rules (“Colorado HELP” 7 CCR 1103-10) requires up to four days of paid sick for employees undergoing testing for the coronavirus in select industries which include: leisure and hospitality; food services, child care, education, transportation, home health, if working with elderly, disabled, ill, or otherwise high-risk individuals and, nursing homes and community living facilities. The rules do not require additional paid leave if an employer’s existing paid leave policy would apply. However, an employee who has exhausted paid leave under the employer’s current policy is entitled to additional four days under the rules. The rules are set to expire when the emergency ends, but no later than July 24, 2020.

Michigan

Michigan enacted Executive Order No. 2020-36, which prohibits discharge, discipline, or other retaliation against employees who are impacted by COVID-19. Michigan’s Paid Medical Leave Act (PMLA) requires covered employers (50 or more employees) to provide one hour of paid sick leave for every 35 hours worked, up to 40 hours per year. Under the Executive Order, employees ordered by the governor to stay home must be treated as if they are taking sick leave under the PMLA. If the employee required to stay home has no paid leave accruals, the leave may be unpaid. The Executive Order continues until the end of the declared states of emergency and disaster.

New Jersey

SB 2304 amends New Jersey’s paid sick leave law to expand the number of qualifying reasons for which employees are allowed to use accrued sick time during a state of emergency declaration, extends job protections under the Family Leave Act to employees caring for a seriously ill family member, and expands the definition of a serious health condition under both temporary disability and family leave insurance to include an illness caused by an epidemic or a communicable disease. The amendments do not have an expiration date. The paid sick leave laws allows employees to use accrued paid sick leave for public health emergencies that close down their workplace or their child’s school or daycare facility. With the amendments, employees can now also use accrued paid sick leave if the workplace or a child’s school or daycare is closed due to an emergency declaration, or upon the recommendation or order for quarantine or isolation of the employee or a family member that needs to be cared for.

New York

New York passed a paid leave law (S 8091) applicable to certain employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19. The new law requires private employers with 100 or more employees and all public employers to provide 14 days of job-protected paid sick leave for any quarantine or isolation order. Mid-size and small employers (11 to 99 employees) and employers worth more than $1 million and with up to 10 employees must provide 5 days of job-protected paid sick leave. Employers with a net income of less than $1 million and with fewer than 10 employees must provide job-protected unpaid leave for the duration of any quarantine or isolation order. Additionally, “quarantine leave” is available to any worker who does not receive 14 days of paid sick leave. Under “quarantine leave,” the state will provide eligible employees with full wage replacement benefits for up to 14 days.

New York State has also passed a law mandating that employers provide paid sick leave to employees. The new obligation is separate and distinct from the New York State Quarantine Leave Law enacted in response to COVID-19. The statewide sick leave law applies to all employers with employees in the state. The law goes into effect on September 30, 2020 when employers must allow employees to start accruing paid sick leave, but employers are not obligated to allow use of sick leave until January 1, 2021. Similar to the New York Quarantine Leave Law, the amount of paid sick leave an employer must provide an employee varies based on an employer’s size. Employers with 100 or more employees must provide 56 hours of paid sick leave per calendar year. Employers with fewer than 100 employees must provide 40 hours of paid sick leave; except employers with less than 5 employees, and a net income of less than $1 million, can provide 40 hours of unpaid time. The law does not specifically address whether multistate employers should count employees outside of New York in determining an employer’s size.

In related New York news, the State of New York filed a lawsuit against the DOL last week in response to the DOL’s regulations issued subsequent to the enactment of the FFCRA. In the lawsuit, the State argues, among other things, that the DOL's regulations unlawfully restrict certain employees from taking advantage of the benefits of the FFCRA in the event the employer determines it does not have work for the employee to perform. Additionally, the State argues that the DOL adopted an expansive definition of “health care providers” which allows employers to exclude many employees that Congress intended to cover under the FFCRA. The State additionally alleged the DOL’s regulations conflicted with the FFCRA by determining employees must obtain employer permission to take leave intermittently. The State also took issue with the amount of documentation the DOL’s rule requires which documentation is not mandated in the FFCRA. This lawsuit is just one example of further litigation that may ensue as a result of the implementation of the new paid leave laws.

Koley Jessen continues to monitor the situation and stay current on the issues facing employers in light of the COVID-19 coronavirus outbreak. If your organization has additional questions or concerns as the situation develops, please contact a member of the Koley Jessen Employment, Labor and Benefits Practice Group.


* The information contained in this document is provided for informational purposes only. It should not be construed as business, legal, accounting, tax, financial, investment or other advice on any matter and should not be relied upon for such.

The information in this document may not reflect the most current developments as the subject matter is extremely fluid and may change daily. The content and interpretation of the issues addressed herein is subject to revision. Koley Jessen, P.C., L.L.O. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this document to the fullest extent permitted by law. Do not act or refrain from acting upon the information contained in this document without seeking professional or other advice.

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