Statutory Update – COVID-19 Legislation; NY PSL Regs, WA LTC & More

February 3, 2022

COVID-19 Legislation

State and Local

Emergency Paid Sick Leave (EPSL) Updates

Below are a few updates since our last summary on December 3:

California

On January 25 the governor of California and members of the state legislature announced that they reached an agreement regarding reinstatement of COVID-19 Supplemental Paid Sick Leave. In its current form, the proposed legislation (AB84 / SB114, as of February 2) features requirements that largely resemble those of the 2021 law that expired on September 30: 

• Applies to employers with 26 or more employees.
• Between January 1 and September 30, 2022, full-time employees who are unable to work or telework are eligible for 40 hours of SPSL for reasons associated with COVID-19 (including vaccination), and an additional 40 hours upon providing proof of their or a family member’s positive COVID-19 test. Benefits are prorated for part-time employees, and vary slightly for firefighters and providers of in-home supportive services (both as defined).
• Leave must be paid at the employee’s regular rate, up to $511 per day, to a maximum of $5,110.
• SPSL is in addition to time accrued under the Healthy Workplaces, Healthy Families Act (accrued paid sick leave) and COVID-19 Supplemental Paid Sick Leave provided in 2021. However, if an employer provides supplemental paid leave that is payable for the same reasons and at the same level of compensation as this law on or after January 1, 2022, the employer may count the hours of the other paid benefit or leave towards the total number of hours of SPSL required.

We will continue to monitor and provide updates as possible.

Long Beach, CA

In our December 3 Statutory Update we noted the Long Beach City Council’s recommendation that the city’s Supplemental Paid Sick Leave requirements sunset on December 31, 2021.  In a vote held on December 7 it was decided that the ordinance should be sunset “no sooner than” February 28, 2022.

Colorado

The Colorado Department of Labor and Employment (CDLE) has posted updated guidance addressing the applicability of Public Health Emergency Leave (PHEL) in 2022. The guidance (INFO #6C) clarifies that PHEL is still in effect but that employers are not required to provide an additional 80 hours of PHEL in 2022. However, they must allow employees to access any balance of PHEL not used in 2021, and offer the full 80 hours to new employees.

Note: CDLE has also posted updated guidance regarding accrued paid sick leave under the Healthy Workplaces and Families Act (HFWA) (INFO #6B), which includes a link to the 2022 version of the worksite poster (translations available here).

New York

New York’s “COVID-19 quarantine leave” requirements provide paid leave to employees subject to a mandatory or precautionary order of quarantine or isolation. For employers with 100 or more employees, this paid leave is in the form of 14 days of “COVID-19 sick leave”.  With the New York State Department of Health’s (NYS DOH) decision to align with the CDC’s amended guidelines for quarantine and isolation, the quarantine leave FAQ have been updated with the following:

Q: On January 13, 2022, the Department of Health released updated guidance allowing individuals who have been exposed to COVID-19 to end their quarantine after 5 days if they are asymptomatic and subsequently test negative, or if it is not possible to get a test and they have had no COVID-19 symptoms. How does this affect NY’s COVID-19 quarantine leave benefits?

A: NY’s COVID-19 quarantine leave benefits are only available during the order of quarantine or isolation. Once an individual is no longer subject to an order of quarantine or isolation, they are no longer eligible for NY’s COVID-19 quarantine leave benefits.

NYS DOH has also posted self-attestation forms on its Isolation and Quarantine webpage that may be used by employees in lieu of obtaining a quarantine or isolation order from a government entity or treating healthcare provider in order to qualify for quarantine leave benefits. These forms are intended to be utilized in accordance with the January 14 guidance:

• Affirmation of Isolation: to be used by individuals if they or a family member have tested positive for COVID-19 or show symptoms of COVID-19, regardless of vaccination status;
• Affirmation of Quarantine: to be used by individuals if they or a family member have been exposed to someone who is COVID-19 positive during their contagious period, were not up to date on COVID-19 vaccination at the time of exposure, and have been in quarantine.

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

Other COVID-19 Legislation

District of Columbia Vaccination Leave and DC FMLA Amendment – Update

In our December 3 Update we included a review of emergency legislation temporarily amending the District of Columbia’s Accrued Sick and Safe Leave Act (ASSLA) to provide paid time off for COVID-19 vaccination effective November 18, 2021, and extending “COVID-19 Leave” under the District’s Family and Medical Leave Act (DC FMLA) effective November 5. The emergency (90-day) legislation has been followed by the COVID Vaccination Leave Temporary Amendment Act of 2021 (B24-0405 / D.C. Act 24-255), which was approved by the mayor on December 22 and is projected to become law on/around February 18, 2022, following Congressional review. The temporary Act extends the effective period of the amendments (to 225 days from when it takes effect), but otherwise makes no material changes to the provisions of the emergency Act.

On January 14, 2022, the District’s Office of Human Rights (OHR) released updated guidance around DC FMLA “COVID-19 Leave”, as well as a new poster.  The poster should be displayed conspicuously in the workplace by all employers with 20 or more employees in the District; it is also recommended that it be made easily accessible to employees working remotely.

New York City COVID-19 Child Vaccination Time

On December 24 New York City’s City Council enacted Local Law 172. The law temporarily amends the city’s Earned Safe and Sick Time Act (ESTA) to require that all employers provide paid time off for employees to accompany a child to receive a COVID-19 vaccine or to care for a child recovering from the vaccine’s side effects.

Effective retroactively to November 2, 2021, through December 31, 2022, the law requires up to four hours of paid time off, per injection, per child.  Eligible employees are those working in New York City who are parents of a child under age 18, or of an older child incapable of self-care because of a mental or physical disability. “Parent” is defined as a biological, foster, step, or adoptive parent; legal guardian; or a person standing in loco parentis.

Employers may require up to seven days’ advance notice if the need for COVID-19 child vaccination time is foreseeable, and may request that documentation of vaccination be received within seven days of the date time is taken.

Paid time under the law is in addition to any paid time otherwise available to the employee under ESTA. Employees must be paid for COVID-19 child vaccination time at the greater of their regular rate of pay or the applicable minimum wage, no later than the payday for the next regular payroll period beginning after the time is used by the employee (or after the law took effect, if qualifying time was taken prior to the law’s enactment).

Given the law’s retroactive effective date, the Department of Consumer and Worker Protection (DCWP) will not impose certain penalties during the 60 days after enactment without first providing an employer with written notice of an alleged violation and 15 days to remedy the alleged violation.

While the law does not outline any requirements for notifying employees, the city has posted a flyer for informational purposes on the ESTA webpage.

Please see our summary of each of the COVID-19 Vaccination Leave laws.

Non-COVID-19 Legislation

State and Local

New York Paid Sick Leave – Final Regulations

On December 22 the New York State Department of Labor (NYS DOL) released final regulations for New York Paid Sick Leave, which went into effect on September 30, 2020.  The regulations provide the following clarifications:

While the law specifically requires that employers carry over unused sick leave to the next calendar year, with no limit and even when time is “frontloaded”, employers may do one of the following:

1. give employees the option to voluntarily elect to use and receive payment for paid sick leave prior to the end of a calendar year or carry over unused sick leave; or
2. only allow employees to carry over unused sick leave.

For the purpose of determining an employer’s number of employees and, therefore, the amount of required leave, NYS DOL interprets the statute to include all employees of the employer nationwide. The number of employees is determined by counting the highest total number of employees concurrently employed at any point during the calendar year (January 1 through December 31) to date.

Employers may request verification for leaves exceeding three consecutive workdays, but may not deny an employee leave while attempting to confirm the basis for the leave, or when requested medical documentation or other verification is unattainable due to associated costs. If, however, the employer discovers the request to be false or fraudulent, disciplinary action may be taken against the employee.

Employees may use accrued paid sick time upon a verbal or written request to their employer. There is no specified notice or time period requirement, even for foreseeable leave.

Washington Long Term Care (WA Cares) Update

Our December 22 Update included notice of the December 17 announcement of the delay of premium collection for the WA Cares Fund set to begin January 1, 2022. The announcement included the suggestion that employers should not collect premiums from employees. The following week the governor issued a statement indicating that, while he had the authority to instruct the Employment Security Department (ESD) not to collect premiums, “only the legislature has the authority to eliminate the requirement that employers pay a premium based on withholding from an employee’s wages.” He added that, unless the legislature acted to change the law as written, employers would be obliged to pay the full premium amount owed. This pivot naturally caused some confusion for employers and individuals subject to the law.

On January 27 the governor signed two pieces of legislation providing firm direction on premium collection and making a few program changes (refer to our May 19, 2021 Update for additional context):

1. HB1732
   • Officially delays premium collection from employees to July 1, 2023 (no change to the rate of 0.58% of wages);
   • Requires that any premiums collected from employees prior to July 1, 2023, must be refunded within to 120 days from collection;
   • Moves the program benefits start date from January 1, 2025, to July 1, 2026;
   • Expands the definition of a “qualified individual” to include someone born before January 1, 1968, who does not otherwise meet program eligibility, if the person has contributed to the program for at least one year at the time of need for benefits. Those eligible under this provision may receive one-tenth of the maximum number of benefit units (i.e., $3,650) for each year of premium payment.
   • Amends the election period for self-employed individuals to opt in to coverage under the program. The election period begins July 1, 2023, and coverage must be elected before July 1, 2026, or within three years of the individual becoming self-employed for the first time.
   • The WA Cares Fund Employer Information webpage has been updated with instruction for employers to:
     • Stop withholding WA Cares premiums from employee earnings.
     • Reimburse employees for WA Cares premiums within 120 days of the date premiums were collected.
     • Continue to maintain copies of exemption approval letters for workers who’ve provided them.
2. HB1733
   • Extends exemption opportunities to several groups of employees:
     • Veterans of the U.S. military who have been rated by the U.S. Department of Veterans Affairs as having a service-connected disability of 70% or greater;
     • Spouses or registered domestic partners of active duty U.S. service members whether or not deployed or stationed within or outside of Washington;
     • Employees who hold a nonimmigrant visa for temporary workers, as recognized by federal law, and are employed by an employer in Washington; and
     • Employees who are employed by an employer in Washington, but maintain a permanent address outside of Washington as their primary location of residence.
   • Applications for exemptions for these groups will be accepted by ESD beginning January 1, 2023.  Individuals with an approved exemption are permanently ineligible for the WA Cares program unless their personal circumstances cause for the exemption to be discontinued (Section 2 of the law text describes these circumstances and required actions).
   • Does not alter or extend the exemption for individuals with Long Term Care insurance policies purchased prior to November 1, 2021, outlined in the original law.

Benefits for Domestic Workers

San Francisco, CA

On January 13 the mayor of San Francisco approved the “Domestic Workers’ Equal Access to Paid Sick Leave Ordinance” (Ordinance No. 4-22), requiring accrued paid sick leave for domestic workers (as defined).  Workers must accrue an amount of paid sick leave of no less than one hour per 30 hours worked. “Small businesses” may cap accrual at 40 hours, and other employers at 72 hours (see the definitions of “Employer” and “Small Business” in SF Admin. Code §12W.2(d) and (f)).

The ordinance also calls for the establishment of a “paid sick leave system” into which employers will report a worker’s rate of pay and hours worked, and through which payment of accrued paid sick leave funds will be coordinated.  This system will allow a worker’s paid time to be accrued and consolidated across multiple employers, and/or travel with the worker during a transition from one employer to another. 

The ordinance will become effective February 12, 2022, with the due date for commencement of worker accruals and finalized implementation of the paid sick leave system one year later (on or around February 12, 2023). 

New York

On December 22 the governor of New York signed A6077 which, effective January 1, 2023, reduces the minimum number of hours that personal or domestic workers must work in order to be eligible for state disability (NY DBL) benefits from forty per week to twenty.

Please contact your Trion Account Team members with specific questions about these or other updates.

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