Statutory Update – COVID-19 Legislation; FMLA, CFRA/PDL, MA PFML, Westchester County ESL

January 12, 2021

COVID-19 Leave Legislation

Federal Legislation

Expiration of FFCRA Leave Requirements

The Consolidated Appropriations Act (H.R. 133), signed December 27, confirmed that Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFML) required under the Families First Coronavirus Response Act (FFCRA) would expire December 31, 2020. For any employee taking a period of FFCRA leave on December 31, leave ended at the end of that day.  Under the Act, however, employers may choose to continue to offer these leave entitlements and, if they do so, claim the payroll tax credits for leaves taken by employees through March 31, 2021.  Note that a voluntary extension would not provide employees with a new leave entitlement, but simply extend the period of time FFCRA leave may be taken (see also the DOL’s December 31 news release and newly added FAQ #104 and #105). Additional guidance is expected; in the meantime, employers evaluating whether or not to offer extension of FFCRA are advised to:

• ensure adequate recordkeeping of EPSL and/or EFML taken by employees is maintained in order to justify any claim for tax credits; and
• be aware that, even though mandated FFCRA leave has ended, EPSL requirements still exist in certain jurisdictions (see below).

State and Local Legislation

State and Local Emergency Paid Sick Leave 

While employers are no longer required to provide paid COVID-19-related leave on a federal level, state and local requirements remain. The majority of the Emergency Paid Sick Leave (EPSL) laws enacted were also slated to expire at the end of 2020, but with COVID-19 cases still on the rise many of the entities responsible for these laws have issued extensions into the new year. Below is a quick summary of the status of each – note that, with the exception of Colorado, none of the extensions require employers to provide new banks of leave, only additional time for employees to use original entitlements. 

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

Worker Protections

District of Columbia

The worker protections issued under B23-0980, now D.C. Act 23-483, outlined in our December 15 Update, were extended on December 23 by B23-0871/D.C. Act 23-443, now Law 23-0168, through August 4, 2021.

Michigan

On December 29, the governor of Michigan approved SB1258 which, effective immediately, amends requirements previously enacted under HB6032 (covered in our November 13 Update):

• Employees who test positive for COVID-19 must not report to work until they are advised by a healthcare provider or public health professional that they have completed a recommended isolation period or until all of the following conditions have been met:
  1. 1. 24 hours have passed since a fever has subsided, without the use of fever-reducing medication;
     2. the isolation period per CDC guidelines has passed (previously specified as 10 days from the later of a positive test or onset of symptoms);
     3. the employee’s principal symptoms of COVID-19 (as defined) have improved; and
     4. (added) the employee is no longer subject to isolation recommended by a healthcare provider or public health professional.
• (Added) Employees who display the principal symptoms of COVID-19 but have not tested positive must not report to work until one of the following conditions are met:
  1. a negative test result is received; or 2. all of the following apply:
     • the isolation period per CDC guidelines has passed since principal symptoms began;
     • the employee’s principal symptoms have improved; and
     • 24 hours have passed since a fever has subsided, without the use of fever-reducing medication.

• An employee who has had close contact (per CDC guidelines, previously defined as within 6 feet for 15 minutes) with an individual who tests positive for COVID-19 must not report to work until one of the following conditions are met:
  1. 1. a quarantine period per CDC guidelines (previously specified as 14 days) has passed since the employee had close contact with the individual; or
     2. the employee is advised by a healthcare provider or public health professional that their quarantine period has been completed.
• The following classes of employees, who may otherwise be subject to quarantine but have not tested positive for COVID-19 and are not experiencing any symptoms of COVID-19, may participate in onsite operations when “strictly necessary to preserve the function of a facility where cessation of operation of the facility would cause serious harm or danger to public health or safety”:
  1. 1. healthcare professionals;
     2. healthcare facility workers;
     3. first responders;
     4. child protective services employees;
     5. workers at childcare institutions (as defined);
     6. workers at adult foster care facilities (as defined);
     7. correctional facility workers;
     8. (added) workers in the energy industry who perform essential energy services (as defined); and
     9. (added) any other class of workers designated by the department of health and human services as essential to avoid serious harm to public health or public safety. 

SB1258 also adds a section to provide employers some protection from legal action for claims of violation between February 29 and October 22, 2020, if the employer can demonstrate that, at the time of the alleged violation, it was operating in compliance with a) CDC guidance; b) all federal, state and local statutes, rules and regulations; and c) all executive orders and agency orders.

Other Leave News

Family and Medical Leave Act (FMLA)

The Department of Labor’s (DOL) Wage and Hour Division (WHD) released two Field Assistance Bulletins on December 29:

1. Worksite Notice – Electronic Posting (2020-7)

Employers subject to FMLA are required to display a general notice conspicuously for all workers and job applicants, notifying them of the FMLA provisions and providing information concerning how to file a complaint with WHD. While current regulations state that this notice may be provided electronically, FAB 2020-7 clarifies that WHD will consider electronic posting an acceptable substitute for the continuous posting requirement when (1) all of the employer’s employees exclusively work remotely, (2) all employees customarily receive information from the employer via electronic means, and (3) all employees have readily available access to the electronic posting at all times.  However, where an employer may have some employees working onsite and others remotely, electronic posting may supplement hard copy posting, but that both methods should be employed.

This bulletin also applies to posting requirements under the Fair Labor Standards Act (FLSA), Section 14(c) of the FLSA, the Employee Polygraph Protection Act (EPPA), and the Service Contract Act (SCA).

2. Telemedicine Visits (2020-8):

As part of its COVID-19 response last year, WHD communicated that, until December 31, 2020, telemedicine visits would be considered in-person visits for the purposes of establishing a serious health condition under the FMLA (see COVID-19 FMLA FAQ #12).  WHD has made the decision to permanently extend this policy provided that, in order to be considered an “in-person” visit, a telemedicine visit:

• • • must include an examination, evaluation, or treatment by a health care provider;
    • must be permitted and accepted by state licensing authorities; and
    • should be performed by video conference.

Communication methods that do not meet these criteria (e.g., a simple telephone call, letter, email, or text message) are insufficient to satisfy this requirement.  Employers should be mindful that requirements for state “FMLA-like” leave as well as statutory disability and paid family leave may vary.

California Family Rights Act (CFRA) and Pregnancy Disability Leave (PDL) Resources

In our October 5 Update we outlined the changes to California’s Family Rights Act (CFRA) and Pregnancy Disability Leave (PDL) made by SB1383 effective January 1, 2021. The state’s Department of Fair Employment and Housing (DFEH) has posted updated materials (including translations) on its website, including:

CFRA

• Fact Sheets: 2021 Updates and General
• Required poster
• Healthcare Provider Certification form

PDL

• Fact Sheet
• Required poster
• Healthcare Provider Certification form

Massachusetts Paid Family and Medical Leave (MA PFML)

Extension for 2020 Bonding

The MA PFML law and its regulations allow that employees who welcomed a new child in 2020 may file a MA PFML claim for 12 weeks of bonding up until the first anniversary of the birth, adoption or placement for foster care.  On December 21 the Department of Family and Medical Leave (DFML) released an emergency regulation stating that, in an effort to “maximize staffing capacity” during the COVID-19 emergency, employers who are acute care hospitals* may allow employees to extend the window for 2020 bonding events to December 31, 2021, regardless when in 2021 the actual 12-month period ends.  Employers are not required to allow the extension, nor may they require an employee to take it. They may, however, initiate discussions with an eligible employee to determine his or her intention. The extension applies to both the state program and private plans.

Employers who are not acute care hospitals but wish to provide this extension may submit a written request to DFML. The Director will determine whether to grant or deny such requests after considering likely effects on public health and safety.

* Acute care hospitals are defined as hospitals licensed under M.G.L. c.111 § 51 and the teaching hospital of the University of Massachusetts Medical School.

Eligibility for Remote Workers (COVID-19)

On December 8 DFML issued Technical Information Release 20-15 (TIR 20-15) addressing MA PFML eligibility for employees who are working from home in Massachusetts on a temporary basis due to the COVID-19 health emergency.  TIR 20-15 extends the previously issued TIR 20-10 and states that, during the period that the rules in the TIR remain in effect (i.e., until 90 days after the state of emergency in Massachusetts is lifted), an individual who previously performed services outside of Massachusetts and was not subject to PFML will not become subject to PFML solely because the individual is temporarily working from a location in Massachusetts due to circumstances related to COVID-19. Likewise, an individual who previously performed services in Massachusetts but is temporarily working from a location outside of Massachusetts solely due to COVID-19 circumstances continues to be subject to the PFML rules.

Financial Eligibility Test Threshold

The MA PFML eligibility webpage has been updated to reflect the increased threshold for the program’s Financial Eligibility Test – this number is based on the state minimum wage and released each January.

Prior to applying for benefits, a covered individual must have earned:

1. at least $5,400 during the last four completed calendar quarters (increased from $5,100); and
2. 30 times the weekly MA PFML benefit he or she would be eligible to collect.

Clarification on Interplay of MA PFML and Employer-Provided Leave

Recently posted FAQ clarify that, while employees will not be permitted to “top-off” MA PFML benefits with accrued paid sick, vacation or PTO time under the state program (consistent with the final regulations), employers sponsoring private plans may allow employees to supplement their MA PFML benefits with accrued paid leave.

Tax Treatment of Contributions and Benefits

DFML is still awaiting official guidance from the IRS as to the tax treatment of MA PFML contributions and benefits. Until this guidance is received, the MA PFML website has been updated to state that it is anticipated that the IRS will instruct that employee contributions be withheld on a post-tax basis.

Westchester County, NY Earned Sick Leave

When New York State’s Paid Sick Leave law became effective on September 30, 2020, it was assumed that employees covered by both it and Westchester County’s Earned Sick Leave Law, originally effective April 10, 2019, would receive the better of the two laws’ provisions where applicable. However, the County recently posted notice on its website that the state law “now governs paid sick leave in Westchester County” and refers employers and individuals to the state’s PSL website for information and requirements.

Note that the County’s website specifically states that this preemption does not apply to the County’s paid Safe Time Leave Law.

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

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