Statutory Update – COVID-19 Legislation, MA PFML Private Plans, NY Paid Sick Leave & More

September 1, 2020

COVID-19 Leave Legislation

Federal Legislation

Families First Coronavirus Response Act (FFCRA) Updates

• New York Ruling: On August 3 the U.S. District Court for the Southern District of New York (“the Court”) issued a ruling that invalidates four limitations of FFCRA paid leave eligibility outlined in the Department of Labor’s (DOL) April 1 regulations:
  • • Work Availability: The DOL regulations indicate that for some qualifying reasons for Emergency Paid Sick Leave (EPSL) or Emergency Family and Medical Leave (EFML) the employer must have work available (i.e., the employee would miss paid work time). The Court found this illogical and the DOL’s reasoning deficient, and struck down the entire requirement. This effectively expanded the pool of employees eligible for FFCRA leave to those who have been furloughed.
    • Health Care Provider Exclusion: The Court determined that the DOL exceeded its authority in expanding the definition of “health care provider” from being based on an employee’s job duties (as under FMLA, and borrowed by FFCRA) to being based on the employer’s operations, thereby excluding a large number of individuals from FFCRA leave eligibility.
    • Employer Consent for Intermittent Leave: The DOL’s regulations allow that intermittent leave be taken under certain circumstances, but only with the employer’s consent.  The Court agreed that intermittent leave may be at the employer’s discretion in instances where the employee’s presence in the workplace might pose a threat to the health of other employees, but concluded that employer consent for other leave reasons is unreasonable.
    • Documentation Requirements: The DOL’s regulations state that employers may require documentation before an employee is permitted to take EPSL or EFML, which the Court found inconsistent with what the law itself states.

It is unclear whether the ruling applies to employers nationally or only to those in New York, and it remains to be seen how the DOL will respond. Employers should consult with legal counsel before deciding how to apply the ruling for their workforce.

For more details, see the Compliance Alert released by MMA’s Compliance Center of Excellence on August 14: The Empire State Strikes Back.

• Back to School: On August 27 the DOL issued new Q&A regarding the use of leave provided under FFCRA while children are returning to school.  Essentially, employees may use FFCRA leave (Emergency FMLA or Emergency Paid Sick Leave) for days or portions of days during which their child is not scheduled to attend school in person and the employee needs the leave to assist with remote learning (i.e., the school is considered “closed” to the child when only remote learning is available). However, if it is the parent’s choice for his or her child not to attend school during designated in-person periods, this does not qualify for FFCRA leave (i.e., the school is not “closed”) (see #98-100 for the full guidance).

State and Local Legislation

Emergency Paid Sick Leave (EPSL)

In August Sonoma County, CA and the state of Washington have joined the list of jurisdictions enacting emergency measures providing paid leave to workers impacted by COVID-19. Below is an overview of the provisions of these new laws.

Please also see our updated side-by-side comparison of Emergency Paid Sick Leave laws in California, Colorado, the District of Columbia, Nevada, New York and Washington.

Additional EPSL Updates

District of Columbia

On August 19 the District of Columbia passed the Coronavirus Support Second Congressional Review Emergency Amendment Act of 2020 (B23-0869, now D.C. Act 23-405), which is yet another in a series of recent emergency measures covering multiple topics including unemployment insurance, employee leave, small business grants, consumer protections, housing, health and human services, education and public safety. The Act restates the temporary D.C. Family and Medical Leave Act (DC FMLA) and Accrued Sick and Safe Leave Act (ASSLA) requirements previously enacted (see our July 1 and July 31 updates for details). 

D.C.’s Office of Human Rights (OHR) posted updated versions of their guidance and model notice on its website on August 25. Employers subject to DC FMLA, as well as those temporarily covered for COVID-19 leave, are required to inform employees of new rights under the law. Notice must be posted in a conspicuous place and provided to eligible employees; electronic means are acceptable for employees working remotely.

Nevada COVID-19 Employer Liability Immunity and Hospitality Industry Worker Protections

On August 11 the governor of Nevada signed SB4 which, effective retroactively to August 5, provides immunity for certain employers* against civil liability claims arising from COVID-19 exposure, provided that those employers have complied with established health and safety protocols. 

The bill also requires that the Nevada Department of Health and Human Services issue regulations for “public accommodation facilities” in counties with 100,000 or more residents (currently Clark and Washoe Counties) to reduce and prevent the transmission of COVID-19 during the public health emergency. “Public accommodation facilities” include hotels, casinos, bed and breakfasts, and other facilities offering rooms and areas to the public in return for monetary compensation.

Included in the requirements for worker safety are COVID-19 testing for those returning to work after March 13, 2020, daily temperature checks, and that, upon becoming aware of a guest’s or staff member’s positive COVID-19 diagnosis, the employer notify each employee known to have been in close contact with the individual as soon as practicable, but no later than 24 hours, after the employer learns of the diagnosis.  Employees who have been in close contact with someone who has been positively diagnosed, or who are experiencing symptoms of COVID-19, must be provided up to 3 days of paid time off to undergo testing and await testing results, and additional paid time with documentation of a delay in testing. Employees who receive a positive diagnosis of COVID-19 must be allowed at least 14 days off, 10 of which must be paid. This time off is in addition to any other leave to which the employee may be entitled, but may be deducted from leave for the employee’s own health needs provided under FFCRA’s Emergency Paid Sick Leave Act (EPSLA) (5102(a)(1)-(3)).

* Includes private employers, private non-profit organizations and state government agencies, with the following exclusions: (1) Hospitals, independent emergency care centers, and businesses that provide in-home nursing care or operate hospice care, intermediate care, or skilled nursing facilities; and (2) Public school entities for children in preschool, kindergarten or grades 1 through 12.

Worker Protections

Michigan Worker Protections

On August 27 the governor of Michigan issued Executive Order 2020-172, “Protecting workers who stay home, stay safe when they or their close contacts are sick”. Effective immediately, the Order applies to any employer subject to the Paid Medical Leave Act (the state’s accrued sick and safe time law), but includes employers with fewer than 50 employees, and states that employees may not be discharged, disciplined, or otherwise retaliated against for staying home when they are at risk of infecting others with COVID-19.

• • • • An employee who tests positive for or who displays the principal symptoms* of COVID-19 should remain at home (apart from seeking medical care) until 24 hours have passed since the resolution of fever without medication, 10 days have passed since symptoms appeared or since the employee was swabbed for the test yielding a positive result, and other symptoms have improved.
      • An employee** who has been in close contact with (defined as within 6 feet for 15 minutes of) someone who tests positive for or is displaying the principal symptoms* of COVID-19 should remain at home (apart from seeking medical care) until either 14 days have passed since contact or the individual displaying symptoms receives a negative COVID-19 test result. 

* The “principal symptoms of COVID-19” are defined in the order as (i) any one of the following not explained by a known medical or physical condition: fever, an uncontrolled cough, shortness of breath; or (ii) at least two of the following not explained by a known medical or physical condition: loss of taste or smell, muscle aches (“myalgia”), sore throat, severe headache, diarrhea, vomiting, abdominal pain./

** Does not apply to the following classes of employees provided that their employers’ rules governing occupational health allow them to go to work: healthcare professionals, health care facility workers, first responders, child protective services employees, workers at child care and adult care facilities, and correctional facility workers.  

• • • • Employees must be treated as though they are taking medical leave under the Paid Medical Leave Act. However, leave length may not be limited by hours accrued and must extend the length of time as required by the Order. Employers may deduct accrued paid time; if paid time has been exhausted, the leave may be unpaid.
      • Employers are not prohibited from disciplining or discharging an employee who is allowed to return to work under the Order but declines to do so. In addition, any employee who voluntarily returns to work before the timeframes noted above have been satisfied is not entitled to the Order’s protections.

The Order replaces Executive Order 2020-166, issued August 7, which replaced Executive Order 2020-36 (covered in our April 17 update).

Washington Protections for High-Risk Individuals

On July 29 the governor of Washington announced via Proclamation 20-46.2 that the protections for individuals at higher risk for severe illness from COVID-19 established by Proclamation 20-46 (covered in our May 1 update) will be continued for the duration of the current State of Emergency.  Proclamation 20-46.2 was accompanied by a guidance memo, which states that, effective July 29, the Proclamation’s provisions apply only to:

• • • • Employees age 65 and older;
      • Employees whose conditions are listed by the Centers for Disease Control and Prevention (CDC) under the “at increased risk” category; and
      • Employees whose conditions are listed by the CDC under the “might be at increased risk” category, but only if, based on the employee’s medical circumstances and workplace conditions, the employee is, in fact, at increased risk for suffering severe illness from COVID-19.

Employers may not require medical certification from older adults or employees who fall within the “at increased risk” category. They may require medical certification when the employee either falls within the “might be at an increased risk” category or seeks to use any leave where a state or federal law, collective bargaining agreement, or contractual obligation separately requires verification (e.g., FFCRA, employer leave, state paid sick leave or unemployment insurance).

More COVID-19 information and resources may be found on MMA’s Coronavirus Outbreak Resource Page.

Other Leave News

Georgia Lactation Accommodation

On August 5 the governor of Georgia signed HB1090 (now Act 595), which amends GA Code §34-1-6 for private employers and adds a new section (§45-1-7) for public employers. The Act strengthens existing law by requiring that break time for breast milk expression be paid at the employee’s regular rate of pay, by mandating that employers provide a private location for expression of milk, and by removing the requirement that these breaks run concurrently with existing break periods. However, employers are not required to provide paid break time to an employee on any day that the employee is working away from any of the employer’s worksites.

The Act was effective immediately upon signing and applies to all employers; private employers with fewer than 50 employees may be excluded if the requirements present undue hardship.

Massachusetts Paid Family and Medical Leave (MA PFML) Private Plan Exemption Renewals

Massachusetts’ Department of Family and Medical Leave (DFML) has released guidance around renewal of approved Private Plans:

• • Self-Insured Private Plan exemptions effective October 1, 2019, expire on September 30, 2020.  Renewal applications may be submitted via MassTaxConnect between August 30 and September 30, 2020, and must include the following:
    • A signed Self-Insurance Declaration Document; and
    • A copy of the required surety bond (additional information on bond coverage and calculation may be found here).
  • Fully Insured Private Plan exemptions effective October 1, 2019, expire on December 31, 2020. Renewal applications may be submitted via MassTaxConnect between November 30 and December 31, 2020, and must include the policy form number included on the Insurance Declaration Document, which will be provided by the insurance carrier. The Massachusetts Department of Insurance is currently working through approvals of insurance carrier policy filings, which likely explains this extension.
    • Employers wishing to renew their current exemption but switch to a self-insured plan may do so beginning on October 1, 2020, by logging into MassTaxConnect and completing the renewal application.
  • Employers who do not intend to renew their exemption may contact the MA PFML Contact Center at 617-466-3950, or send a message through MassTaxConnect. 

For more information on MA PFML exemption via private plan please visit the MA PFML website.

Reminder: New York Paid Sick Leave Accrual Begins September 30!

Beginning September 30 New York employees must accrue 1 hour of paid sick and safe leave for every 30 hours worked.  Employees may use accrued time starting January 1, 2021, for their or a covered family member’s needs associated with medical care or due to domestic violence, sexual offense, stalking or human trafficking.  Please see our March 25 and April 8 updates for more details. Note: it is expected that the New York Department of Labor will issue regulations and/or guidance, but none have yet been released.

Puerto Rico Working Mothers Protection Act Amendment

On August 8 the governor of Puerto Rico signed HB2424 (available only in Spanish), which immediately amended the Working Mothers Protection Act to provide 5 weeks of paid benefits to female employees adopting a child age 6 years or older. Leave begins the day the child joins the family, regardless whether the adoption has been finalized.  Employees must provide 30 days notice of the need for leave, provide documentation, and communicate their plans for return to work. The Act does not make changes to the current adoption benefit of 8 weeks for children age 5 and younger.

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

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