Statutory Update – Developments in Coronavirus (COVID-19) Legislation

March 25, 2020

Federal Legislation

Guidance on Paid Leave under the Families First Coronavirus Response Act

On March 24, 2020, the U.S. Department of Labor (DOL) released initial guidance for employers around leave provided under the Families First Coronavirus Response Act (FFCRA) passed last week (requirements were summarized in MMA ADL’s March 20 release). The full text of the DOL’s guidance is available here; below are a few items of note:

Effective Date: FFCRA’s Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act provisions apply to leave taken between April 1, 2020 and December 31, 2020. The effective date was previously communicated as April 2.

• • • The guidance confirms that leave provided under FFCRA is in addition to any leave provided by the employer before or after the FFCRA effective date of April 1, even if the employer’s leave is intended for the same purposes.

Employer size:

• • • An employer’s size will be based on all full-time and part-time employees in any U.S. state, territory or possession, at the time of each employee’s need for leave. The count should include employees currently on leave, temporary employees and day laborers, but exclude individuals classified as independent contractors under the Fair Labor Standards Act (FLSA).
    • Businesses comprised of multiple entities are instructed to follow FLSA joint employer rules and the FMLA integrated employer test in determining size (#2 in Q&A).

Possible exemptions for businesses with fewer than 50 employees will be addressed in future regulations.

Pay:

• • • The total number of hours paid under Emergency Paid Sick Leave is capped at 80 over a two-week period.
    • Calculation of pay for Emergency Family and Medical Leave must include all hours the employee would normally have been scheduled to work.  This includes overtime, however a premium is not required on overtime hours.
      • • Examples for calculating pay for part-time or variable hour employees is included (#5 & 6 in Q&A).
    • Rate of pay is based on the definition under FLSA over a period of 6 months prior to the date of leave.

Formal regulations are expected shortly.

The DOL has posted additional information on its COVID-19 and the American Workplace webpage, including:

• • The Required Notice*, which must be displayed in a conspicuous place accessible to all employees. Per the posted FAQ the notice may be distributed to all current employees working remotely via mail or email and/or posted on a website available to all employees.

 *Please note: the version of the notice posted as of today includes some slight errors with regard to leave due to school/daycare closure, including omission from the reasons for paid sick leave and an incorrect aggregate limit for the 10-week paid FMLA portion. For this reason, a direct link to the document is not included here; please visit the DOL website directly, as it is expected an updated version will be posted.  

• • FFCRA Fact Sheets for employees and employers
  • Q&A addressing COVID-19, FLSA and FMLA

The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”)

A third phase of legislation in response to the COVID-19 crisis is currently underway: The Coronavirus Aid, Relief and Economic Security Act proposes further aid to businesses, workers, state and local governments, and the healthcare system. While the current bill does not appear to include leave requirements similar to those under FFCRA, this is subject to change as it moves through the judicial system. It is expected that the Senate will approve the bill within the next day or so, at which point it will move on to the House for consideration.  

State Legislation

Recap of State Disability and/or Paid Family Leave Program Responses to COVID-19

	Program / Change	Helpful Links
California	State Disability Insurance (SDI): 1-week waiting period waived self-attestation or written order from a state or local health office may be accepted as medical certification Paid Family Leave (PFL): self-attestation or written order from a state or local health office may be accepted as medical certification Paid Sick Leave: self-quarantine may be considered “preventive care”	EDD – COVID-19 information and state programs EDD – COVID-19 FAQ DILR Guidance on CA Paid Sick Leave
Hawaii	Hawaii has not addressed the Temporary Disability Insurance (TDI) program directly, though this may change. MMA ADL will continue to monitor COVID-19 information released by the Hawaii Department of Labor and the Hawaii Employers Council.
New Jersey	Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI): no announced changes Earned Sick Leave: no changes; law as written enables employees to take time off from work for public health emergencies	NJ DOL – State Benefits and COVID-19 NJ State Benefit Scenarios
New York	Disability Benefits (DBL) and Paid Family Leave (PFL):  no changes to the laws themselves, however claims may be “fast-tracked” for workers under official quarantine and unable to work remotely Paid Sick Leave: emergency leave for quarantined workers effective March 16; separate accrued paid sick leave requirements begin later this year (see below and our March 20 release for details)	Attorney General’s Guidance (content recently added) New Paid Leave for COVID-19
Puerto Rico	Temporary Disability (SINOT): no announced changes Paid Sick Leave: If enacted as currently written, House Bill 2428 will amend the current paid sick leave law (Law 180-1998) to provide non-exempt employees five days of emergency paid sick leave after other leaves have been exhausted. On March 13 Puerto Rico’s Department of Labor issued guidance that included instruction that employees be entitled to use their sick leave for any true need associated with COVID-19 (Opinion 2020-01, available only in Spanish).
Rhode Island	Temporary Disability Insurance (TDI): 7-day waiting period waived; self-attestation accepted Temporary Caregiver Insurance (TCI): 7-day waiting period waived; self-attestation accepted Sick and Safe Leave: no changes; law as written enables employees to take time off from work to care for themselves or family members affected by COVID-19	Workplace Fact Sheet
Washington	Paid Family and Medical Leave (PFML): no announced changes Paid Sick Leave: no changes; law as written enables employees to take time off from work for public health emergencies	ESD – COVID-19 Information for Workers and Businesses WA PFML COVID-19 FAQ Paid Sick Leave COVID-19 FAQ WA State Benefit Scenarios

Paid Sick Time Law Updates

Below are recent COVID-19-related changes to paid sick and leave legislation. Note that these are in addition to changes reported in our March 20 release.

• San Francisco, CA Paid Sick Leave: San Francisco’s Office of Labor Standards Enforcement (OLSE) has issued guidance regarding the use of San Francisco paid sick leave, which adds needs associated with a public health emergency as reasons for use. The guidance also indicates that employers may not require doctor’s notes or other documentation for the duration of the current COVID-19 health emergency.
• Minnesota:
  • • Duluth Earned Sick and Safe Time:  Duluth’s Earned Sick and Safe Time (ESST) ordinance does not specifically list public health emergency as a reason for use of accrued time.  However, FAQ posted on the (ESST) website instruct that ESST may be used for needs associated with COVID-19, including screening, providing or receiving care for symptoms and quarantine with suspected exposure.
    • Minneapolis, MN Sick and Safe Time: The city’s Department of Civil Rights has posted FAQ on the Sick and Safe Time website addressing the use of accrued time for COVID-19-related reasons.  While the ordinance currently includes public health emergency as a covered reason for use, the guidance outlines specific reasons such as quarantine due to suspected exposure to COVID-19, care for the employee or a family member with symptoms of the virus, school and place-of-care closures, and closure of the employee’s workplace by a public official.  
• Nevada Earned Paid Leave: The law allows for the use of accrued paid time for any reason, which would include needs associated with COVID-19. The Office of the Labor Commissioner has issued guidance stating that use of accrued paid leave due to a mandatory government quarantine should not be counted against an employee’s leave balance.
• New York Paid Sick Leave: Our March 20 update included mention that, along with emergency paid sick leave in response to COVID-19, the governor of New York also announced comprehensive paid sick leave requirements expected to be effective on or around September 15, 2020.
  • Applies to essentially all private employers and employees, as defined under NYLL Section 190. Government agencies and their employees are excluded.
  • Accrual: 1 hour per 30 hours worked, beginning the later of the law’s effective date or the employee’s date of hire, with the following maximums:
    • Employers with four or fewer employees in a calendar year: 40 hours
      • Employers of this size with net income of $1 million or less in the previous tax year must provide up to 40 hours of unpaid leave  
    • Employers with five to 99 employees in a calendar year: 40 hours
    • Employers with 100 or more employees in a calendar year: 56 hours
  • Employers may also “frontload” the annual maximum amounts above at the beginning of each year.
  • Leave entitlement begins January 1, 2021:
    • Reasons for leave: (1) Diagnosis, care or treatment of an employee’s or covered family member’s physical or mental illness, including preventive care; (2) The employee’s or a covered family member’s needs associated with domestic violence or stalking.
    • Covered Family Members: Employee’s spouse, domestic partner, child, parent, sibling, grandparent or grandchild; also includes spouse’s or domestic partner’s child or parent. Parent and child relationships include biological, foster, step, adoptive, legal guardianship and in loco parentis.
    • Employers may set a minimum increment for use, not to exceed four hours.
  • Accrued but unused time will carry over to the following year; however, employers may impose annual use limits in accordance with the accrual limits outlined above.
  • Employers are not required to pay out accrued but unused time upon the employee’s separation of employment
  • Employers who currently provide time off that meets or exceeds the requirements of the new law are not required to provide additional time.
  • All records must be retained for six years. In addition, an employer must provide an employee with an accounting of accrued, used and available time upon request.
  • The new law does not impact similar laws currently in force in New York City and Westchester County.
• Oregon Paid Sick Time: Oregon’s Paid Sick Time Law includes needs associated with a public health in its reasons for use.  The Bureau of Labor and Industries has posted FAQ around the availability of paid sick time during the COVID-19 outbreak, which include the suggestion that employers be flexible in the portion of the law that allows a request for medical certification for absences exceeding three days. The FAQ also make note of the recent change to the Oregon Family Leave Act (OFLA), which was covered in our March 20 update.
• Seattle, WA Paid Sick and Safe Time (PSST): Effective March 18 the law is amended to allow employees to use accrued time upon closure of an employee’s family member’s school or place of care. The amendments also require an employer with 250 or more full-time equivalent employees to allow their employees to take time under the law when their workplace has reduced operations or closes for any health or safety reason. The Office of Labor Standards has noted the changes on its PSST webpage.

MMA ADL will continue to research and monitor developments.

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

 

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

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