Statutory Update – Federal and State COVID-19 Legislation Updates, MA PFML, Dallas Paid Sick Time

April 8, 2020

Federal Legislation

DOL Issues Temporary Rules for Paid Leave under the Families First Coronavirus Response Act (FFCRA)

On April 6, 2020, the Department of Labor’s (DOL) Wage and Hour Division (WHD) published rules to provide direction for administering the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) contained in the Families First Coronavirus Response Act (FFCRA). These leave requirements apply to employers with fewer than 500 employees and are effective April 1, 2020.

The following includes guidance provided by the WHD temporary rule (FFCRA rules will ultimately appear as Part 826 of CFR Title 29) and the DOL FAQ (#60-79 are new), and supplements information provided by MMA ADL in previous Statutory Update releases on March 20, March 25 and March 30:

Defined terms:

• “Subject to quarantine or isolation order”: Quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause an employee (or category of employees such as by age range or medical condition) to be unable to work even though his or her employer has work that the employee could otherwise perform.
• “Telework”: Work an employer permits or allows an employee to perform while the employee is at home or at a location other than his or her normal workplace. An employee is able to telework if his or her employer has work available, the employer permits the employee to work from the employee’s location, and there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the employee from performing that work. Telework may be performed during normal hours or at other times agreed by the Employer and Employee. Telework is work for which wages must be paid as required by applicable law and is not compensated as paid leave under the EPSLA or the EFMLEA.
•  “Substantially similar condition” for use of Emergency Paid Sick Leave has not yet been defined (DOL FAQ #73)

Employers should calculate business size each time an employee needs to take leave, which means availability of Emergency Paid Sick Leave (EPSL) or Emergency Family and Medical Leave (EFML) could vary from one week to another.  Per the example in the temporary rules:

“If an employer has 450 employees on April 20, 2020, and an employee is unable to work starting on that date because a health care provider has advised that employee to self-quarantine because of concerns related to COVID-19, the employer must provide paid sick leave to that employee. If, however, the employer hires 75 new employees between April 21, 2020, and August 3, 2020, such that the employer employs 525 employees as of August 3, 2020, the employer would not be required to provide paid sick leave to a different employee who is unable to work for the same reason beginning on August 3, 2020.”

• An employer’s count should include all employees working in the United States, including full-time and part-time employees, employees on leave, temporary employees who are jointly employed by the employer and another employer, and day laborers supplied by a temporary placement agency.  Independent contractors and employees who are laid off or furloughed need not be counted. Businesses comprised of multiple entities are instructed to follow FLSA joint employer rules and the FMLA integrated employer test in determining size. (DOL FAQ #2)
• Small employers with fewer than 50 employees may qualify for an exemption from the requirement to provide paid leave due to school, place of care, or child care provider closings or unavailability, if the leave payments would jeopardize the viability of their business as a going concern. Employers electing this exemption should document their determination based on the criteria set forth in the rules and retain these records. Note that display/distribution of the mandatory Employee Rights Notice is still required. (DOL FAQ #4, #58-59; rules §826.40)

Employer notice to employees:

• The Employee Rights Notice must be displayed by April 1, 2020, 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. Although the FFCRA does not require employers to provide a translated notice to employees, the Department has issued the notice in other languages.
• Notices for Emergency Family and Medical Leave: FFCRA does not require employers to respond to employees who request EFMLEA leave with “traditional FMLA” notices of eligibility, rights and responsibilities, or written designations that EFML leave use counts against employees’ FMLA leave allowances. However, an employer that has established practices for providing individual employees with specific notices compliant with the FMLA regulatory guidance (29 CFR 825.300) may prefer to apply its existing practices to EFML users.

Employee eligibility:

• EPSL: All employees, effective immediately
• EFML: Employees on payroll for the 30 calendar days preceding leave.  The CARES Act expanded this to include rehired employees who were laid off March 1, 2020, or later and had worked for the employer for at least 30 of the 60 calendar days prior to the layoff. (Sec. 3605)
• Exceptions:
  • • An employer may exclude health care providers and emergency responders from EPSL and EFML eligibility (see definitions in rules §826.30 and DOL FAQ #56-57). However, an employer’s exercise of this option does not authorize an employer to prevent an employee who is a health care provider or emergency responder from taking earned or accrued leave in accordance with established employer policies.
    • Employees subject to reduced hours, worksite closure or furlough are not entitled to EPSL or EFML, but may be eligible for unemployment benefits. If an employer later reopens the worksite, employees would be eligible for FFCRA paid sick leave or paid FMLA as warranted. (DOL FAQ #23-28 #77)
    • Federal employees covered under FMLA Title II are also excluded. In addition, under the CARES Act, the Director of the Office of Management and Budget (OMB) has the authority to exclude certain Federal employees from EPSL and EFML.

Use:

• An employee may take EPSL if he or she becomes ill with COVID-19 symptoms and needs to seek a medical diagnosis, or if a health care provider directs him or her to self-quarantine because the provider believes the employee may have COVID-19 or is particularly vulnerable to COVID-19. EPSL is not available for an employee who decides to self-quarantine for an illness without medical advice, even if symptoms are present. (DOL FAQ #61-62)
• EPSL may be taken for an employee to care for an individual who, as a result of a quarantine or isolation order, is unable to care for him- or herself, and providing that care prevents the employee from working (or teleworking). An “individual” is described as an immediate family member, someone who regularly resides in the employee’s home, or someone whose relationship with the employee creates an expectation of care (DOL FAQ #63-66, #71). EFML is available only to care for the employee’s son or daughter (#72).
• ESPL and EFML may be taken intermittently under certain circumstances (see DOL FAQ #20-22; rules §826.50)
• Leave for more than one parent or guardian: Generally speaking, an employee should not need to take EPSL or EFML if a co-parent, co-guardian or the child’s usual care provider is available. (DOL FAQ #69; see also IRS FAQ #44)
• Employees receiving workers’ compensation or state-provided temporary disability benefits are generally not eligible for EPSL or EFML. (DOL FAQ #76)

Interplay with Other Leave Types (note: some changes were made to DOL FAQ #31-33 from the previous version; see also #77):

• Leave under EPSLA is in addition to, and not a substitute for, other sources of leave which the employee had already accrued, was already entitled to, or had already used, before the EPSLA became operational on April 1, 2020. Therefore, neither eligibility for, nor use of, EPSL may count against an employee’s balance or accrual of any other source or type of leave.
• An employer may not deny EPSL or EFML on the grounds that the employee has already taken another type of leave or taken leave from another source, including leave taken for reasons related to COVID-19 (this does not apply to the 12-week maximum under FMLA, as leave under EFML is included in that maximum).
• Section 5107(1) of the FFCRA law text states that, “Nothing in this Act shall be construed to in any way diminish the rights or benefits that an employee is entitled to under any (A) other Federal, State or Local law, (B) collective bargaining agreement, or (C) existing employer policy.” “Existing employer policy” as it is used here is defined in the temporary rules as a COVID-19-related paid leave that an employer may have voluntarily provided prior to April 1, 2020, which offered more paid leave than under the employer’s standard or current policies. FFCRA still requires these employers to provide the entirety of the paid leave to which its employees are eligible under EPSLA and EFMLEA.
  • • However, an employer may prospectively terminate such a voluntary additional paid leave offering as of April 1, 2020, or thereafter, as long as the employer had not already amended its leave policy to reflect the voluntary offering. This means that the employer must pay employees for leave already taken under such an offering before it is terminated, but the employer need not continue the offering in light of FFCRA taking effect.
• An employer may not require, coerce, or unduly influence an employee to use unpaid or paid leave before taking EPSL or EFML.
• Supplementing EPSL or EFML benefits:
  • • An employee may choose to use EPSL prior to using any other type of paid leave to which he or she is entitled under any other Federal, State, or local law, collective bargaining agreement, or employer policy that existed prior to April 1, 2020. An employer may allow, but not require, an employee to supplement EPSL with company paid leave, up to the employee’s regular earnings.*
    • For EFML:
      • During the first two weeks of unpaid EFML, the employee can elect to use, or the employer can require the employee to use, paid time available through an employer’s policy. If the employee elects to use EPSL during this period he or she may choose to supplement EPSL pay with company paid leave, up to the his or her regular earnings.*
      • For the remaining EFML weeks, leave the employee has available under the employer’s policies to care for a child, such as vacation, personal leave or paid time off, may be used concurrently with EFML to supplement the EFML benefit, if the employee and the employer agree. If EFML is used concurrently with another source of paid leave, the employer must pay the employee the full amount to which the employee is entitled under the employer’s preexisting policy for the period of leave taken.*
      • * Any tax credit entitlement is limited to FFCRA benefit maximums.
• Employees have no right or entitlement to EPSL or EFML for any unpaid or partially paid leave taken before April 1, 2020.

Documentation:

• Employees must provide a signed statement requesting leave, which should include the employee’s name, requested leave dates, the COVID-19 qualifying reason for leave, and a statement that the employee is unable to work or telework due to the COVID-19 reason.
  • • Supporting documentation must also be provided; this documentation may be in the form of:
      • The name of the government entity that issued the quarantine or isolation order to which the employee or the individual for which the employee is caring is subject.
      • The name of the health care provider who advised the employee or the individual for which the employee is caring to self-quarantine for COVID-19 related reasons.
      • For leave needed due to closure of school or place of care, documentation should include the child’s name, the name of the facility that closed or the care provider that became unavailable due to COVID-19 reasons, and a statement that no other suitable person is available to care for the child during the period of requested leave. Additional information may be needed to substantiate leave to care for a child over age 14. (IRS FAQ #44)
      • For leave taken under the Family and Medical Leave Act of 1993 (i.e., “traditional” FMLA) for an employee’s own or a covered family member’s serious health condition related to COVID-19, the normal FMLA certification requirements still apply.
• Documentation, including record of oral statements and criteria for denial under the small business exception, must be retained for a period of four years.
  • • Guidance for employers as to what documentation should be retained in order to qualify for tax credit can be found under #4 of the IRS FAQ.

Employees who take EPSL or EFML are entitled to continued coverage under the employer’s group health plan on the same terms as if such leave was not taken, provided plan contributions are maintained.

• For unpaid leave, or where EPSL or EFML pay is insufficient to cover the employee’s contributions, employers are directed to FMLA regulations (29 CFR 825.210(c)).
• If an employee chooses not to retain group health plan coverage during EPSL or EFML, the employee is entitled upon returning from leave to be reinstated in coverage on the same terms as prior to taking the leave, including family member coverage.

Job Protection:  In most instances, an employee is entitled to be restored to the same or an equivalent position upon return from EPSL or EFML in the same manner that he or she would be returned to work after FMLA leave.  Note that this requirement does not apply in the event of an employment action, such as layoff, that would have affected the employee regardless of whether the leave was taken: the employer must be able to demonstrate that the employee would have been laid off even if he or she had not taken leave. Additional exceptions may apply for “key” employees and for employers with fewer than 25 employees. (DOL FAQ #43).

Enforcement:

• The DOL will not bring enforcement actions against any employer for violations of the Act occurring within 30 days of the FFCRA’s enactment (i.e., March 18 through April 17, 2020), provided that the employer has made reasonable, good faith efforts to comply with the Act. After April 17, 2020, the DOL will fully enforce violations of the Act, as appropriate and consistent with the law. (DOL FAQ #78-79)
• The FMLA’s general prohibitions on interference with rights and discrimination (29 U.S.C. 2615), as well as the FMLA’s enforcement provisions (29 U.S.C. 2617), apply for purposes of the EFMLEA, except that an employee’s right to file a lawsuit directly against an employer does not extend to employers who were not previously covered by the FMLA

Employers are directed to the IRS for information on claiming tax credits for EPSL and EFML:

• COVID-19-Related Tax Credit FAQ
• Coronavirus Tax Relief
• IRS Form 7200: Advance Payment of Employer Credits Due to COVID-19

Additional Resources

FFCRA

Department of Labor

• • • COVID-19 and the American Workplace
    •  Employee Rights Notice and FAQ
    • FFCRA Fact Sheets for employees and employers
    • Q&A addressing COVID-19, FLSA and FMLA

Americans with Disabilities Act (ADA/ADAAA)

Equal Employment Opportunity Commission (EEOC)

• • •  March 27 webinar
    • What You Should Know About the ADA, the Rehabilitation Act, and COVID-19
    • Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.

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

Department of Labor (DOL)

• • •  April 2 News Release:    Unemployment Insurance Program Letter No. 14-20
    • April 4 News Release:      Unemployment Insurance Program Letter No. 15-20
    • April 5 News Release:      Unemployment Insurance Program Letter No. 16-20

State Legislation

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

Updates from our previous version are in bold type:

	Program / Change	Helpful Links
California	State Disability Insurance (SDI): Benefits may be available with medical provider’s certification or written order from a public official 1-week waiting period waived Paid Family Leave (PFL): Benefits may be available with medical provider’s certification or written order from a public official 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 Summary of Programs for Workers
Hawaii	Temporary Disability Insurance: no changes to law, however, benefits may be available during quarantine with healthcare provider certification	COVID-19: Labor Benefits Fact Sheet TDI FAQ Hawaii Department of Labor Hawaii Employers Council
New Jersey	Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI): The definition of “serious health condition” has been expanded to include reasons associated with communicable disease; the one week waiting period for TDI is waived for leave for this reason.* Earned Sick Leave: law as written enables employees to take time off from work for public health emergencies; this was expanded to specify reasons associated with a state of emergency declaration.*	NJ DOL – State Benefits and COVID-19 NJ State Benefit Scenarios
New York	Disability Benefits (DBL): no changes to the law itself, however some benefit may be available in coordination with Emergency Paid Sick Leave (see our March 20 release for details) Paid Family Leave (PFL): The definition of “serious health condition” has been expanded to include a family member’s COVID-19 diagnosis.** Emergency Paid Sick Leave: leave for quarantined workers effective March 16; separate accrued paid sick leave requirements begin later this year***	Attorney General’s Guidance 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 (available only in Spanish) 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) and Temporary Caregiver Insurance (TCI): 7-day waiting period waived; self-attestation accepted temporarily for individuals under quarantine 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 COVID-19 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

* As originally presented in our March 30 release, these changes are permanent as a result of Senate Bill 2304 (P.L.2020, c.17), signed by the governor of New Jersey on March 25, 2020. The law also similarly amends the definition of “serious health condition” under the New Jersey Family Leave Act.

** Emergency amendment to the NY PFL law announced by NY Workers Compensation Board (WCB) on March 27, 2020, which expires in 90 days (approximately June 25, unless extended). This is separate from Emergency Paid Sick Leave and “fast tracking” to NY DBL and PFL benefits covered in our March 20 release.

*** NY WCB has clarified that the breakdown of employers by size for Emergency Paid Sick Leave obligations is based on an employer’s national employee count. Additional note: Emergency Paid Sick Leave was ultimately passed as S8091, with no changes in provisions. Comprehensive paid sick leave was passed April 3 as part of the state budget (S7506); the law is effective September 30 with leave entitlement beginning January 1, 2021. See our March 20 and March 25 releases for more details.

Los Angeles, CA COVID-19 Supplemental Paid Sick Leave

*Please see updated information in our April 17 release*

On April 7, 2020 the mayor of Los Angeles approved “COVID-19 Supplemental Paid Sick Leave” (Ordinance No. 186590), which requires employers to provide paid sick leave to employees working in Los Angeles. 

The provisions of the Ordinance are as follows:

• Effective Date: April 10, 2020, until December 31, 2020
• Applies to:
  • • Employers with 500 or more employees nationally (i.e., employers not impacted by FFCRA) who have employees performing work in Los Angeles
      • • Employers of a first responder (as defined under the ordinance) or a health care professional (as defined under the California Family Rights Act) are exempt.
    • Employees who have been employed by the same employer from February 3, 2020, through March 4, 2020, and perform any work within the geographical boundaries of Los Angeles
      • • Independent contractors are excluded, but the employer must be able to demonstrate that an individual is an independent contractor.
        • Will not apply to employees covered by a Collective Bargaining Agreement if the CBA expressly waives its provisions and is bilaterally modified.
• Leave Entitlement
  • • Employees working at least 40 hours per week or classified as full-time by the employer are eligible for 80 hours of Supplemental Paid Sick Leave.  Leave is calculated based on the employee’s average two-week pay between February 3 and March 4, 2020.
    • Employees working less than 40 hours per week and not classified as full-time by the employer are eligible for Supplemental Paid Sick Leave in an amount no greater than the employee’s average two-week pay between February 3 and March 4, 2020.
    • The maximum amount payable is $511 per day, $5,110 in total.
      • • Employees of joint employers are limited to the total aggregate amount of leave specified for one employer.

• Reasons for Use: An employee may take leave:
  • • Under recommendation by a public official or healthcare provider to prevent the spread of COVID-19
    • If he or she is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, kidney disease or a weakened immune system
    • To care for a family member who is not sick but who has been advised by a public official or healthcare provider to quarantine or isolate
    • To provide care for a family member whose school or care provider has closed in accordance with a public official’s recommendation.  Care providers include senior care facilities. Eligible children are those under the age of 18.
• Request for Supplemental Paid Sick Leave may be given verbally or in writing.  Employers may not require documentation of the need for this leave; however, it is recommended that employers maintain records of use.
• Legal action for violation of the Ordinance may result in an award requiring an employee’s reinstatement, back pay or “other legal or equitable relief”.
• While the LA Ordinance shares some similarities with requirements for businesses with fewer than 500 employees under FFCRA, it should be noted that it does not provide economic relief or tax credits to employers who are obligated to provide leave.

Colorado Health Emergency Leave with Pay

MMA ADL previously reported on the issuance of Colorado’s Health Emergency Leave with Pay (“Colorado HELP”), which requires employers in certain industries to provide paid sick leave to their employees. The Colorado Department of Labor and Employment published updates to the rules, adding retail stores that sell groceries and food and beverage manufacturers as covered industries, effective on March 26 and April 3, respectively. The March 26 changes also expand eligibility from only employees with flu-like symptoms who are awaiting COVID-19 testing, but also those who are under instruction from a health care provider to quarantine or isolate due to a risk of having COVID-19. The rule amendments are not to be applied retroactively.

In addition, the duration of Colorado HELP was updated to 30 days beginning April 3, 2020 (expiring on or around May 2), but could be extended again if the State of Emergency continues past that date.

New Jersey Passes Temporary Job Protection Act

On March 20, 2020, the governor of New Jersey signed A3848 which, during the Public Health Emergency and State of Emergency declared on March 9, 2020, prohibits employers from terminating or otherwise penalizing an employee who takes time off of work because he or she has or is likely to have an infectious disease, as certified by a healthcare provider. Following the certification period, the employee must be reinstated to his or her position held prior to leave with no reduction in status, seniority, pay or benefits.

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

Other Leave News

Massachusetts Paid Family and Medical Leave (PFML)

On April 3, 2020, the Massachusetts Department of Insurance (DOI) released Notice 2020-A, which provides guidance to insurance carriers developing insured products compliant with MA PFML private plan requirements. Carriers are required to file their product(s) with the DOI by June 3, 2020.

The DOI’s Notice also includes a policy template. The template, along with the DOI’s policy checklist, are intended to help ensure the carriers’ submitted policies are compliant. These pieces may also prove useful to employers who plan to self-insure their private plan in writing their policy document.

Employers who filed a Declaration of Insurance along with their private plan application were instructed at the time to submit a policy form to the Department of Family and Medical Leave (DFML) once available from their insurance carrier. The DOI’s Notice indicates that, rather than having the employer submit the policy form prior to their exemption renewal, the policy form number will be requested at the time of renewal. The DFML will update its website to outline this procedure.

Dallas, TX Paid Sick Time Ordinance Postponed

Dallas’ Earned Paid Sick Time Ordinance, which went into effect on August 1, 2019 but was not set to be enforced until April 1, 2020, was halted via court injunction on March 30, 2020. The ordinance has been postponed until further notice, as reflected on the city’s Paid Sick Time webpage. With this ruling, Dallas joins Austin and San Antonio as Texas cities with paid sick leave currently “on hold”. Employers are encouraged to seek legal counsel before reversing any policy put in place to comply with the Dallas ordinance. 

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

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