Statutory Update - COVID-19 Leave Legislation; WA PFML

Statutory Update – COVID-19 Leave Legislation; WA PFML

February 10, 2021

COVID-19 Leave Legislation

Federal

IRS Guidance on Tax Credits for Voluntary FFCRA Leave

Our January 12 Statutory Update noted that, while COVID-19 paid leave required by the Families First Coronavirus Response Act (FFCRA) expired effective December 31, 2020, the Consolidated Appropriations Act (CAA, H.R. 133) allows employers to elect to continue to offer their employees Emergency Paid Sick Leave (EPSL) and/or Emergency Family and Medical Leave (EFML) through March 31, 2021. On January 28 the Internal Revenue Service (IRS) updated their FAQ to provide guidance around claiming the tax credits associated with voluntary extension of FFCRA leave. The updated FAQ detail items such as who may claim credits, the amount of credits available, when and how credits may be claimed, and the interplay with the Employee Retention Credit and Paycheck Protection Program under the CARES Act.

OSHA Guidance on Workplace Safety

In response to President Biden’s January 21 Executive Order, the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) posted updated guidance to assist non-healthcare* employers in implementing workplace safety measures around COVID-19. The guidance addresses identifying exposure and infection risks, reducing the potential for infection through proper protection and worksite cleaning, and establishing clear communication with employees around protocols for prevention, testing and voicing concerns. While the guidance does not impose requirements that employers provide leave to employees who have been exposed to COVID-19 in the workplace, it does provide a few recommendations for managing these situations:

Instruct workers who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission of COVID-19. Ensure that absence policies are non-punitive. Policies that encourage workers to come to work sick or when they have been exposed to COVID-19 are disfavored. See additional guidance involving eliminating the hazard.
Minimize the negative impact of quarantine and isolation on workers. When possible, allow them to telework, or work in an area isolated from others. If those are not possible, allow workers to use paid sick leave, if available, or consider implementing paid leave policies to reduce risk for everyone at the workplace. The Families First Coronavirus Response Act provides certain employers 100% reimbursement through tax credits to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 through March 31, 2021.
Isolate workers who show symptoms at work. Workers who appear to have symptoms upon arrival at work or who develop symptoms during their work shift should immediately be separated from other workers, customers, and visitors, sent home, and encouraged to seek medical attention. See additional elements involving screening and testing.
Consider protections for workers at higher risk for severe illness through supportive policies and practices. Older adults and people of any age who have serious underlying medical conditions are at higher risk for severe illness from COVID-19. Workers with disabilities may be legally entitled to “reasonable accommodations” that protect them from the risk of contracting COVID-19. Where feasible, employers should consider reasonable modifications for workers identified as high-risk who can do some or all of their work at home (part or full-time), or in less densely-occupied, better-ventilated alternate facilities or offices.

The Executive Order also directed OSHA to evaluate whether federal emergency standards (perhaps similar to Virginia’s newly adopted Permanent Standard) are necessary and, if so, issue them by March 15, 2021.

* OSHA’s industry-specific guidance may be found here.

State and Local

State and Local Emergency Paid Sick Leave

While talks of a revival of mandated paid COVID-19 leave on a federal level are still underway, state and local requirements are still in place. Below is a copy of the summary of Emergency Paid Sick Leave (EPSL) extensions provided in our January 12 Update, with updates to Los Angeles County, CA, Oakland, CA, Santa Rosa, CA, Sonoma County, CA, and New York State noted. As previously mentioned, with the exception of Colorado and New York, none of the extensions require employers to provide new banks of leave, only additional time for employees to use original entitlements.

Please see our side-by-side comparison for more details on the Emergency Paid Sick Leave laws.

Jurisdiction	Current Emergency Paid Sick Leave Expiration
California State	December 31, 2020 If employee is on leave as of expiration date, employee may finish taking leave (unlike FFCRA). Note: The California Division of Occupational Safety and Health Administration’s (Cal/OSHA) Emergency Temporary Standards (ETS), effective November 30, require that “COVID-19 cases” (defined as persons who tested positive for COVID-19 test, are subject to an official order to isolate or quarantine, or who have died due to COVID-19) and employees who have been exposed to COVID-19 at work be “excluded” from the workplace. Employees who are “otherwise able and available to work” must have their pay, seniority and benefits maintained. This “exclusion pay” does not apply if the employer can demonstrate that COVID-19 exposure was not work-related, or if the employee is unable to work for reasons other than protecting the workplace from COVID-19 transmission. An employee who is unable to work because of his or her COVID-19 symptoms would not be eligible for exclusion pay; rather, he or she may be eligible for Workers’ Compensation or State Disability Insurance benefits (see §3205(c)(10) and (11) and FAQ #47-60). The ETS applies to all workers except those who have no exposure to others in the workplace, those working from home, and those covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. The ETS will be in effect for 180 days (on/around May 29, 2021), unless re-adopted. See the dedicated Cal/OSHA webpage and FAQ for full details on the ETS’ requirements (which, we should add, are currently being challenged legally).* * Prior to providing full exclusion pay, employers may require use of employee’s paid sick leave benefits and consider (offset) benefit payments from other sources.
Long Beach, CA	No set expiration date; reviewed every 90 days (last extended December 8, next review due by March 6, 2021).
Los Angeles (City), CA	Terminates two weeks following the expiration of the local COVID-19 emergency period.
Los Angeles County, CA	February 10 Update: Extended via Urgency Ordinance until two calendar weeks after the expiration of the local COVID-19 emergency. • No new EPSL entitlement if leave was taken in 2020 under the original ordinance or under FFCRA; • As of January 1, 2021, the requirements apply to all employers in the unincorporated areas of LA County (the original ordinance only applied to those with 500 or more employees nationally).
Oakland, CA	February 10 Update: Extended via Emergency Ordinance for the duration of Oakland’s March 9, 2020 Declaration of Emergency. • No new EPSL entitlement if leave was taken in 2020 under the original ordinance, CA State EPSL or FFCRA.
Sacramento (City), CA	Extended through March 31, 2021 via Emergency Ordinance
Sacramento County, CA	Extended through March 31, 2021.
San Francisco, CA	Extended 60 days, through February 11, 2021, via December 15 Emergency Ordinance; see updated FAQ.
San Jose, CA	Revised ordinance approved by the city council on January 5, effective January 1 through June 30, 2021: • No new EPSL entitlement if leave was taken in 2020 under the original ordinance or under FFCRA; • Now applies to all employers (not just those not subject to FFCRA); • Now applies to all employees who cannot work or telework (not just those who must leave home to perform “essential work”). The city has posted updated information on its website.
San Mateo County, CA	Extended through June 30, 2021 via Emergency Ordinance.
Santa Rosa, CA	February 10 Update: Reinstated via Urgency Ordinance (ORD-2021-001) effective February 2 through the later of March 31, 2021 or the expiration of FFCRA tax credits. • No new EPSL entitlement if leave was taken in 2020 under the original ordinance or under FFCRA. • Now applies to all employers (the original ordinance only applied to those with 500 or more employees nationally). • Specifies that leave is available if the employee is “unable to work”. • The original ordinance specified the paid benefit as regular rate of pay up to $511/day with an aggregate maximum of $5,110 for all types of leave. The Urgency Ordinance amends this to 66 2/3% of pay, up to $200/day with a maximum of $2,000, for leave associated with care for a family member or due to the unavailability of a minor child’s school or place of care. • Employers must now provide written notice to all current employees and to any new employee within his or her first week of employment. A model notice has been posted on the city’s COVID-19 Paid Sick Leave webpage. If the employer can show that the need for an employee’s requested leave is due to the employee’s intentional violation of a health order, the employer may deny the benefit.
Sonoma County, CA	February 10 Update: Extended through June 30, 2021 via Urgency Ordinance; amendments to the original ordinance may be forthcoming.
Colorado	The Healthy Families and Workplaces Act (HFWA) featured COVID-19 Emergency Paid Sick Leave (EPSL), which was effective July 15 and ended December 31, 2020, as well as permanent accrued paid sick leave (PSL) and accompanying public health emergency leave (PHEL) effective January 1, 2021. It was previously unclear whether the public health emergency declared due to COVID-19 in 2020 would trigger PHEL entitlement in 2021. However, a December 23 emergency rule and CDLE’s recently released INFOs #6C confirm that, since the COVID-19 public health emergency was “re-declared” after HFWA’s July 14 effective date and continues into 2021, employees are entitled to a new allotment of up to 80 hours of paid leave under HFWA’s PHEL beginning January 1. • Leave an employee may have taken under 2020’s EPSL requirements may not be counted against PHEL entitlement. • Employees may use PHEL for up to four weeks after the official termination of a public health emergency (the current declaration, under Executive Order D 2020 296, expires January 25, which would permit PHEL leave to be taken through February 22 – though it is quite likely another extension will be issued). Also, while accrued paid sick leave (PSL) is not required of employers with fewer than 16 employees until January 1, 2022, PHEL is required of all employers as of January 1, 2021. See our December 15 Statutory Update for our most recent coverage of HFWA.
District of Columbia	• Paid Public Health Emergency Leave was extended through March 31, 2021. • DC FMLA amendments are applicable through the end of the COVID-19 public health emergency.
Nevada Hospitality Workers	Undefined
New York State	In effect for the duration of any COVID-19 quarantine or isolation order issued by the state, the department of health, local board of health, or any government entity duly authorized to issue such order due to COVID-19. February 10 Update: On January 20 NY DOL issued guidance stating that: 1. Other than nursing home staff, employees who have completed a mandatory quarantine or isolation period are not required to be tested prior to returning to work. However, an employee who subsequently receives a positive COVID-19 test must not report to work and will be considered subject to a mandatory order of isolation by the Department of Health and therefore eligible for COVID-19 Sick Leave – regardless whether he or she already received sick leave as required by the law for the first period of quarantine or isolation. The employee must submit documentation that he or she has received a positive test result, unless the test was administered by the employer. 2. While employees are not required to be tested to discontinue a period of quarantine or isolation, an employee who chooses to be tested at the end of such period and continues to test positive must not report to work, and will be considered subject to a second mandatory order of isolation from the Department of Health and therefore entitled to COVID-19 Sick Leave. The employee must submit documentation that he or she has received a positive test result after the initial period of isolation, unless the test was administered by the employer. 3. An employee not otherwise subject to a mandatory or precautionary order of quarantine or isolation who has been removed from the workplace by the employer due to exposure concerns must continue to be paid at his or her regular rate of pay until the employer permits the employee to return to work* or the employee becomes subject to a mandatory or precautionary order of quarantine or isolation. If the latter, the employee will be entitled to COVID-19 Sick Leave for the period of time he or she is subject to the mandatory or precautionary order of quarantine or isolation. * Note: This is a departure from the law text, which specifically states that COVID-19 Sick Leave is only available if the employee is subject to a mandatory or precautionary order of quarantine or isolation issued by an authorized government agency. Therefore, it would seem that leave provided under this circumstance does not technically qualify as an instance of COVID-19 Sick Leave under the law, unless and until the employee “officially” becomes or is deemed subject to an order of quarantine or isolation. 4. Employees are entitled to COVID-19 Sick Leave for up to three orders of quarantine or isolation. The second and third orders must be based on a positive COVID-19 test in accordance with items 1 and 2 above. For more details on COVID-19 Sick Leave, please refer to our March 20 Update, as well as the state’s website and FAQ.
Philadelphia, PA	December 31, 2020 A covered individual may use all or a portion of PHEL at any time during the public health emergency and for one month following the conclusion of such emergency No extension indicated as of February 10.
Pittsburgh, PA	Terminates upon expiration of the state's or city's emergency disaster declarations, whichever is sooner. Employees may use COVID-19 Sick Time until one week following the official termination of the public health emergency.
Washington Food Production Workers	In effect until the termination or expiration of State of Emergency (currently under Proclamation 20-25.9).
Seattle, WA Gig Workers	In effect until 180 days after the end of the civil emergency

Washington Paid Family and Medical Leave (WA PFML) – Eligibility for Remote Workers (COVID-19)

On January 29 Washington’s Employment Security Department (ESD) issued a temporary Emergency Rule stating that obligations under and eligibility for WA PFML will not change due to temporary COVID-19 restrictions, if:

the employee’s service was localized in Washington prior to March 23, 2020;
COVID-19 restrictions resulted in the employee working from a location outside the state (e.g., from home or other temporary location outside WA); and
the employer and employee intend for the employee to return to performing work exclusively or mostly in Washington once COVID-19 restrictions are lifted.

Employers who may have made adjustments in advance of this rule will be required to submit amended reporting and remit back premiums for any applicable quarters, unless the adjustments were made upon advice from ESD. This rule is effective through May 29, 2021.

The ESD’s rule follows similar guidance from Massachusetts (covered in our January 12 Update).

Please contact your MMA ADL Account Team members for specific questions about these or other updates.

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Statutory Update – COVID-19 Leave Legislation; WA PFML