Statutory Update – COVID-19 Legislation; Reminders, CO HFWA, 2021 Statutory Disability & Paid Family Leave Benefits and Rates

December 15, 2020

COVID-19 Leave Legislation

Emergency Paid Sick Leave

Philadelphia, PA

On November 13 Philadelphia’s Department of Labor issued emergency regulations addressing the interplay of the city’s accrued paid sick leave law (Promoting Healthy Families and Workplaces, Phila. Code §9-4100) and the recently enacted Public Health Emergency Leave (PHEL) and Healthcare Epidemic Leave (see our March 20 and October 5 Updates for more details).

Below are a few notable items from the regulations:

• Working from home within the geographic boundaries of the City of Philadelphia constitutes the performance of work within the geographic boundaries of the City of Philadelphia.
• An employer that chooses to exercise an exception under the federal Families First Coronavirus Response Act (FFCRA) and not provide FFCRA leave to eligible employees must provide Public Health Emergency Leave (PHEL) to such individuals.
• An employer that provides some but not the full benefit an employee is entitled to receive under the city’s accrued sick leave, PHEL, and Healthcare Epidemic Leave requirements must provide supplemental leave or allow the employee to borrow against future leave that the employee is entitled to accrue in the same calendar year, such that the total available combined provides paid leave in the same or a greater amount than the city’s requirements (see examples beginning on page 4).
• Use/Interplay:
  • • Employees are entitled to use PHEL for a COVID-19-related purpose until the earlier of one month after the conclusion of the Public Health Emergency or December 31, 2020. Employers are not required to allow an employee to use PHEL if he or she is reasonably able to perform work remotely (see “Ability to Work Remotely” under section 4.2.1). In that event, the employee is permitted to use accrued leave.
    • An eligible employee who chooses to take Healthcare Epidemic Leave from a given healthcare employer is not entitled to take any other leave benefit for the same purpose, nor may the employer require the employee to use accrued paid leave or the PHEL concurrently with Healthcare Epidemic Leave.
    • An eligible employee who takes Healthcare Epidemic Leave for his or her own illness may use accrued leave or PHEL for any permitted purpose other than the his or her own COVID-19 illness.  The employee may not use PHEL for his or her own COVID-19 illness if he or she is provided with Healthcare Epidemic Leave.
    • See the chart on page 12 for additional information on permitted uses for each type of leave.
• Documentation required:
  • • Reasonable documentation for PHEL may include, but is not limited to, a public statement from a government official, the City Department of Public Health, or the Center for Disease Control if the statement specifically addresses the employee’s circumstances.  The employee need not provide the employer with documentation from a governmental official, however the employer may require a signed statement from the employee affirming that the conditions described in such public statement apply to the employee or to the family member for whom the employee is providing care. Consistent with CDC guidance, employers may not require a note from a health care professional.
    • Forms of acceptable documentation for Healthcare Epidemic Leave include: (1) a positive COVID-19 test or written communication from a healthcare provider indicating a positive COVID-19 test, (2) a federal, state, or local governmental isolation order, or (3) a written isolation recommendation from a healthcare provider.
• Notification to employees: In addition to the notice requirements for accrued sick leave, employers must post a notice regarding PHEL and Healthcare Epidemic Leave in a conspicuous place accessible to all employees, and provide electronic access if employees are not working on site. If the employer produces a handbook for employees or independent contractors, this information must also be included in such handbook, promptly in the case of an electronic version, and upon the handbook’s next revision in the case of a printed version.

Pittsburgh, PA

On December 9 the mayor of Pittsburgh signed Ordinance 2020-0927, which temporarily adds Chapter 626A to the city’s Paid Sick Days Act and requires employers with 50 or more employees to provide “COVID-19 Sick Time” for reasons associated with COVID-19. Below is an overview of the Ordinance’s requirements.

Please also see our updated side-by-side comparison of Emergency Paid Sick Leave laws.

Worker Protections

San Francisco, CA

Worker protections provided by September 11’s Ordinance No. 162-20 were extended by Ordinance No. 236-20, amending the expiration date to January 10, 2021. See our October 5 Update for additional details.

District of Columbia

On November 16 the mayor of the District of Columbia signed the Protecting Businesses and Workers from COVID-19 Congressional Review Emergency Amendment Act of 2020 (B23-0980, now D.C. Act 23-483) which, in addition to requiring employers to establish policies around social distancing and workplace safety, prohibits employers from retaliating against any employee who:

• • has tested positive for COVID-19, provided that the employee did not physically report to work after receipt of the positive test result;
  • is sick and waiting for a COVID-19 test result;
  • must quarantine due to exposure to someone with COVID-19;
  • is caring for someone who is sick with COVID-19 symptoms or is quarantined; or
  • refuses to serve a customer or client, or to work within 6 feet of an individual, who is not complying with established workplace protections.

Employers are permitted to prohibit an employee who has tested positive for COVID-19 from entering the workplace until a medical professional has cleared the employee to return to or until the period of quarantine recommended by the Department of Health or the U.S. Centers for Disease Control has passed.

Non-compliance penalties may be in the form of fines up to $500 per violation, legal costs and/or payment of lost wages.

The Act was effective immediately upon signing, and will remain in place for 90 days, unless extended.

Other Leave News

2021 Reminders:

California Family Rights Act (CFRA) and New Parent Leave Act (NPLA) changes are effective January 1, 2021. (See our October 5 Update for more details.)

Colorado’s Healthy Families and Workplaces Act (HFWA) becomes effective January 1, 2021. (July 31 Update; see additional updates below)

Connecticut Paid Family and Medical Leave (CT PFML)

• • All employers with one or more employees working in the state must register with the Connecticut Paid Leave Authority (CT PLA) by December 31, 2020 (November 13 Update). New information has been added to the Business Registration webpage, including a step-by-step guide to the registration process (the guide also references where an employer may designate interest in applying for a private plan).
  • Program contributions begin January 1, 2021. (October 5 Update)
  • Note:
    • While employee notice requirements don’t “officially” begin until July 1, 2022, employers may wish to utilize materials posted on the CT PFML website, such as the Employee Fact Sheet, paystub insert and/or poster, to notify their employees of upcoming contribution requirements and details on CT PFML program benefits.
    • The private plan application process is still being developed.  It is anticipated that employers who receive provisional approval during the first quarter of 2021 will be excused from remitting Q1 contributions to the state, and that funds collected from their employees beginning January 1 may instead be used to support the private plan. Employers interested in pursuing a private plan are encouraged to monitor the Exemption webpage; more information is also available in the CT PLA’s private plan Policy & Procedures (October 5 and November 13 Updates)

Maine Employee Leave Act becomes effective January 1, 2021. (October 5 Update)

Massachusetts Paid Family and Medical Leave (MA PFML)

• • Insured private plan renewals must be completed by December 31, 2020. (September 1 Update)
  • Employers participating in the state program may now create an account through which they will be able to review employee applications, download documents and decision letters, and receive updates via email.
  • Benefit entitlement for own illness, bonding, qualifying military exigency, and care for an injured servicemember begins January 1, 2021; benefit entitlement for care for a family member begins July 1, 2021.
  • The Department of Family and Medical Leave (DFML) has posted new information on its Employer and Employee webpages, including an updated worksite poster (the poster and its translations can be found here).

New leave entitlements under the amendments to New York City’s Earned Sick and Safe Time Act (ESTA) are effective January 1, 2021. (October 5 Update)

New York State Paid Sick Leave (NY PSL) entitlement begins January 1, 2021. (November 13 Update)

Colorado Healthy Families and Workplaces Act Rules

In our July 31 Update we outlined the specifics of Colorado’s Healthy Families and Workplaces Act (HFWA) (C.R.S. 8-13.3-401 et seq.) effective January 1, 2021.  On November 10 the Colorado Department of Labor and Employment released final rules for the Wage Protection Act of 2014 (WPA), which include a few important clarifications with regard to HFWA:

• Accrual of paid sick leave under HFWA applies to employers with 16 or more employees effective January 1, 2021, and to all other employers on January 1, 2022; public health emergency leave applies to all employers effective January 1, 2021.  The WPA rules clarify that the method for determining employer size will the same as the method directed for the federal Family and Medical Leave Act (see 7.4).
• HFWA 405(2)(a) states, upon the declaration of a public health emergency, employers may count an employee’s accrued but unused HFWA paid sick leave toward the Public Health Emergency Leave entitlement. The WPA rules add to this by stating that for the entire duration of a public health emergency, employers:
  1. 1. are required to permit employees to take both (a) HFWA time accrued prior to the declaration of the public health emergency for any of the applicable qualifying reasons, and (b) the amount of Public Health Emergency Leave provided to the employee on the date of the declaration of the public health emergency;
     2. remain subject to the minimum HFWA paid sick time accrual requirements; and
     3. must permit an employee to use the full amount of Public Health Emergency Leave prior to using any of their time previously accrued under HFWA if the employee requires leave under circumstances that qualify for leave under both accrued HFWA leave and Public Health Emergency Leave (example provided: employee is experiencing symptoms of a communicable illness that was the subject of the declaration of a public health emergency and needs to obtain testing and treatment) (see 3.5.1(D)).
• An employer may require “reasonable documentation” that leave is for a HFWA-qualifying purpose only if the leave requested or taken is for four or more consecutive days on which the employee would have ordinarily worked absent the leave-qualifying condition. An employer may not require documentation for leave that is for a qualifying reason related to a public health emergency, nor may an employer request the details of an employee’s or family member’s health information or for leave associated with domestic violence, sexual assault or stalking (see 5.6).
• An employer may require use of HFWA leave in hourly increments, or may require or allow smaller minimum increments.  If an employer does not specify the minimum increment in writing, the minimum is six minutes.
• Additional leave is not required if an employer’s policy provides fully paid leave for both HFWA and non-HFWA purposes (e.g., sick time and vacation).  The employer must communicate to employees, in a writing distributed in advance of an actual or anticipated leave request, that its leave policy provides paid time that meets or exceeds all requirements of HFWA and its applicable rules (including Public Health Emergency Leave). 
  • • If an employee uses all available paid time off for non-HFWA-qualifying reasons (e.g., vacation), additional HFWA leave need not be provided, except that if a public health emergency is declared after an employee uses some or all available paid time off for the applicable benefit year, the employer must supplement the employee’s current total of accrued, unused leave in accordance with Public Health Emergency Leave requirements.
• HFWA leave must be paid at the employee’s regular rate of pay, excluding overtime, bonuses or holiday pay, or at the applicable minimum wage, whichever is greater.
• Notification Requirements:

1. 1. Employers must display a poster in a conspicuous place accessible to all employees
      • • If the work site or other conditions make a physical posting impractical (including remote work, private residences employing only one worker, and certain entirely outdoor work sites lacking an indoor area), the employer must provide a copy of the poster to each employee or worker within their first month of work, including through (if information is customarily disseminated to the employees or workers through these means) either electronic communication or conspicuous posting on a web-based platform.
   2. Employers must provide each new employee written notice outlining HFWA’s rights and requirements. Interpretive Notice & Formal Opinion (“INFO”) #6B may serve as the notice to employees, though the 11/9/20 final “WARNING” rules reflect that the poster may be also be used for the individual notice.
      • • Including the written HFWA notice among other employment-related documents, such as a handbook, a manual, or other written or posted policies, complies with this written notice requirement, as long as the documents are provided either (1) in hard copies given to each employee or (2) in electronic form if the employee easily access the documents electronically and is provided actual notice that the documents contain information regarding their terms of employment, not simply a link that fails to so notify the employee.

• Notices must be provided in English and any language spoken by at least 5% of employees.
• Notice and posting requirements are waived during any period an employer’s business is closed due to a public health emergency.
• Upon an employee’s request, an employer must provide, in writing or electronically, documents sufficient to show the current amount of paid leave the employee has (1) available for use and (2) already used during the current benefit year, including information as to any Public Health Emergency Leave provided and used. Employers may choose a reasonable system for fulfilling such requests including, but not limited to, listing such information on each pay stub, using an electronic system where employees can access their own information, or providing the necessary information via letter or electronic communication.
• Employers must retain record of each employee’s hours worked, paid sick leave accrued and paid sick leave used for a period of two years.

2021 Statutory Disability and Paid Family Leave Benefits and Rates

*EAWW = Employee’s Average Weekly Wage, as defined by each law; SAWW = State Average Weekly Wage

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

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