Statutory Update – State COVID-19 Leave Legislation Updates

April 17, 2020

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

Updates from our previous version of this table 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 DIR 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): Benefits may be available during mandatory or recommended quarantine due to exposure to or attempt to prevent the spread of a communicable disease during a State of Emergency or public health order; 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 by S2304 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: On April 9 the governor of Puerto Rico signed House Bill 2428 (available only in Spanish, and now Act No. 37-2020). The Act permanently amends the current paid sick leave law (Act No. 180-1998) to provide non-exempt employees who are sick or suspected of being sick with a pandemic illness during a state of emergency five days of emergency paid sick leave after all other leave has 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

* Senate Bill 2304 (P.L.2020, c.17) was signed by the governor of New Jersey on March 25, 2020. The law expands the definition of “serious health condition” under NJ TDI, FLA and the New Jersey Family Leave Act (NJ FLA) to include quarantine due to illness from, exposure to, or in attempt to prevent the spread of, a communicable disease during a State of Emergency or under public health order, and waives the one-week TDI waiting period for leave for this reason. The law also amends the Earned Sick Leave Law to include needs associated with a state of emergency declaration among reasons for leave.

Senate Bill 2374 (P.L.2020, c.23), signed on April 14, 2020 and effective retroactively to March 25, removes mandatory or recommended quarantine due to illness from, exposure to, or in attempt to prevent the spread of, a communicable disease during a State of Emergency or under public health order from the definition of “serious health condition” under TDI, FLI and FLA (per S2304) and adds it to reasons for leave. The law also further amends FLA to provide leave to care for a child whose school or place of care has closed by order of a public official due to epidemic or other public health emergency. The law includes guidance around certification, intermittent leave and denials for FLA leave taken for public health emergency reasons.

** 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

As reported in our April 8 release, on April 7, 2020 the mayor of Los Angeles signed Ordinance No. 186590, or “COVID-19 Supplemental Paid Sick Leave”, requiring employers to provide paid sick leave to employees working in Los Angeles.  Later that same day, the mayor issued an Emergency Order suspending the Ordinance as passed and replacing certain provisions:

Provision	Ordinance	Emergency Order *
Effective Date	Effective April 10, 2020 through December 31, 2020	Effective April 7, 2020 until two weeks after expiration of the COVID-19 local emergency period
Employers Impacted	Applies to employers with 500 employees nationally Excludes employers of first responders (as defined in the Ordinance) or healthcare providers (as defined under CFRA)	Applies to employers with either: 500 or more employees within the City of Los Angeles; or   2,000 or more employees within the United States* Excludes: Employers of emergency personnel as defined in the April 1 ‘Safer At Home’ Emergency Order Healthcare providers as defined under CFRA or individuals, including contract workers, working at a health facility licensed under HSC §1250; Global parcel delivery services Businesses that started in or relocated to the city between 9/4/19 and 3/4/20 (exceptions apply for construction companies and film producers) Businesses closed for a period of 14 days due to official COVID-19 emergency order, or that provided at least 14 days of leave*
Eligible Employees	Employed by the same employer from February 3, 2020, through March 4, 2020, and perform any work within the geographical boundaries of Los Angeles Employer must be able to prove an individual is an independent contractor and not an employee	No change; however, reference to independent contractors is not included.* Excludes “employees of government agencies working within the course and scope of their public service employment”
Collective Bargaining Agreements	The Ordinance’s provisions may be waived in a CBA, but only if the waiver is expressly stated and the agreement is bilaterally modified.	A CBA in place on the effective date of the Order may supersede the Order’s provisions if the CBA includes COVID-19-related sick leave provisions.  If it does not, the employer must comply with the Order’s requirements unless and until the CBA is amended to expressly waive them. Requirements may also be (expressly) waived upon the CBA’s expiration or renegotiation.
Leave Entitlement	Employees who work 40h/week or are classified as Full-Time: 80 hours Employees who work less than 40h/week and not classified as Full-Time: average two-week pay between February 3 and March 4, 2020 Employees of joint Employers are only entitled to the total aggregate amount of leave specified for Employees of one Employer. With the exception of FFCRA, leave under Supplemental Paid Sick Leave is in addition to other leave available to the employee.	No change*, though Order specifies “employee is unable to work or telework”
Pay	Calculated based on average 2-week pay between February 3 and March 4, 2020 Maximum $511/day, $5,110 total	No change*
Employer Offset	An employer’s obligation to provide 80 hours of Supplemental Paid Sick Leave is reduced for every hour an employer allowed an employee to take paid leave in an amount equal to or greater than the ordinance’s requirements, not including previously accrued hours, on or after March 4, 2020, for the reasons outlined below.	An employer’s obligation to provide 80 hours of Supplemental Paid Sick Leave is reduced for every hour an employer allowed an employee to take paid leave in an amount equal to or greater than the ordinance’s requirements, not including previously accrued hours, on or after March 4, 2020, for the reasons outlined below or in response to an employee’s ability to work due to COVID-19.* In addition: If an Employer has a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually, the Employer is exempt from any obligation to provide supplemental leave pursuant to this Order for the Employee that received the more generous paid leave.*
Reasons for Leave	Because a public official or healthcare provider recommends the Employee to quarantine to prevent the spread of COVID-19 Employee is least 65 years old or has an underlying health condition To care for a family member who is not sick but who has been advised to quarantine To care for a child under 18 or other family member whose school or care provider has closed in accordance with a public official’s recommendation	Due to Employee’s COVID-19 infection or because a public official or healthcare provider recommends the Employee to quarantine to prevent the spread of COVID-19 No change No change Applies only if the employee is unable to secure a “reasonable alternative” caregiver
Documentation	Employer may not require documentation	No change*
Enforcement	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”, including payment of legal fees	No change

* The information above reflects text appearing in the original Ordinance and in the mayor’s Executive Order; additional information and guidance may be found in the Rules and Regulations document posted by the Office of Wage Standards (OWS) on April 11.

San Jose, CA COVID-19 Paid Sick Leave

San Jose’s City Council unanimously adopted the COVID-19 Paid Sick Leave Ordinance (Ordinance No. 30390) effective April 7, 2020.

Eligible employees are those who have worked at least two hours within the boundaries of San Jose and must leave their homes to perform “essential work.” “Essential” work activities and services were originally defined in a March 16 Order issued by the Santa Clara County Public Health Officer announcing the closure of non-essential services, which was superseded by a March 31 Order (see #13).

• • Employee status will be determined in accordance with CLC §2750.3, and applicability to workers in the construction industry will be determined under CLC §245.5(a)(2).
  • Excludes employees who are able to work from home.

Covered Employers are:

• • • as defined under the city’s Minimum Wage Ordinance (Municipal Code §4.100.030); and 
    • not subject “in whole or in part” to the paid sick leave requirements under the Families First Coronavirus Response Act (FFCRA) (i.e., the San Jose Ordinance applies to employers with 500 or more employees, as well as to employers with fewer than 50 employees who may qualify for FFCRA exemption).
  • Excludes employers who, as of April 7, provide their employees with some combination of paid personal leave at least equivalent to leave required by the Ordinance.  If leave provided by an employer is in some way less than what the Ordinance requires, the employer is required to make up the difference.
  • Employers operating hospitals may delay compliance with the Ordinance for two weeks following enactment on April 7.

Leave Entitlement:

• • Full-Time employees are eligible for 80 hours of sick leave benefit.
  • Part-Time employees are eligible for sick leave hours equal to the number of hours they work on average over a two-week period.
    • • The amount of paid sick leave for Part-Time employees is calculated based on the average number of hours the employee worked per day during the 6 months prior to April 7, 2020. If the employee has been employed for less than 6 months, the calculation should be based on the average hours the employee was expected to work at the time of hire.
  • Unused sick time will not carry over from one year to the next, will not be paid out under any circumstances and will not be available after the sunset of the Ordinance.

Reasons for Use include:

• • The employee is subject by a COVID-19 quarantine order issued by a local official, or is caring for someone who is under such quarantine;
  • The employee has been advised by a healthcare professional to self-quarantine due to COVID-19 or is caring for someone who has been so advised;
  • The employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis;
  • The employee is caring for a minor child whose school or care provider is closed due to COVID-19.

Pay:

• • • An employee using sick leave for his or her own needs will be paid his or her full regular rate of pay up to $511 per day, not to exceed $5,110.
    • An employee using sick leave to care for another person will be paid 2/3 his or her regular rate of pay up to $200 per day, not to exceed $2,000.
  • The city’s Office of Equality Assurance is authorized to establish, implement and enforce the Ordinance’s requirements, which may include a notice posting requirement.
  • The Ordinance does not provide economic relief for or tax credits to employers who are obligated to provide leave.
  • The Ordinance is set to sunset on December 31, 2020.

Note: San Francisco’s Board of Supervisors passed a Public Health Emergency Leave Ordinance (“PHELO”) similar to the Los Angeles and San Jose ordinances, which has been submitted to the mayor for approval and signature. Oakland may also enact emergency paid sick leave requirements. We will continue to monitor and provide updates.

District of Columbia COVID-19 Response Supplemental Emergency Amendment Act

On April 10, 2020, Washington D.C. enacted the COVID-19 Response Supplemental Emergency Amendment Act (D.C. Act 23-886), effective retroactively to March 11. While the provisions of the Act cover a number of topics, the information here is limited to its impact on the District’s Accrued Sick and Safe Leave Act (ASSLA).

The Act temporarily amends ASSLA by creating “declared emergency paid leave” for reasons associated with the COVID-19 emergency*, via the addition of §32-531.02a

During the COVID-19 emergency, employers with 50-499 employees** that are not healthcare providers (as defined) must provide declared emergency paid leave for an absence from work for any reason covered under the Families First Coronavirus Response Act (FFCRA)’s Emergency Paid Sick Leave Act (EPSLA):

1. 1. the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
   2. the employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
   3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
   4. the employee is caring for an individual who is subject to an order as described in #1 or has been advised as described in #2;
   5.  the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions;
   6. the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

*Emergencies declared via Mayor’s Orders 2020-045 and 2020-046 on March 11, including any extensions.

** The Act does not specify if this number is overall or only employees in the District; future regulations may clarify.

 Employees who have been employed at least 15 days prior to the request for leave are eligible.

Leave Entitlement:

• • • • Full-Time employees: 80 hours
      • Part-Time employees: the usual number of hours the employee works in a two-week period
      • An employer may require that an employee exhaust any available leave under federal or District law or the employer’s own policies prior to using declared emergency paid leave.
      • If the employee exhausts declared emergency paid leave and informs the employer of the continued need to be absent from work, the employer must inform the employee of other paid or unpaid leave available by law or under the employer’s policies.

Pay: Employees must be compensated at their regular rate of pay. If the employee does not have a regular rate of pay, his or her rate should be determined by dividing the employee’s total gross earnings (including tips, commissions, piecework, or other earnings) during his or her most recent two-week period by the number of hours worked during that period. The employee’s rate may be no less than the District’s minimum wage.

Notification: Employers may not require more than 48 hours’ notice of the need for leave; in an emergency, the employer must accept “reasonable” notice.

Certification: Employers may request “reasonable” certification for absences of three or more consecutive working days – however, employers that do not contribute towards an employee’s health insurance premiums may not require certification for absence under declared emergency paid leave. 

• • • • When certification is requested, the employee is not required to provide it until one week after returning to work. (see §32-531.04(a-1))

Recordkeeping requirements follow existing requirements under ASSLA: record of hours worked and leave taken must be retained for three years.

The amendment expires in 90 days (July 9, 2020), unless extended.

Michigan COVID-19 Leave and Job Protection

On April 3 the governor of Michigan issued Executive Order 2020-36, requiring employers to provide leave and job protection for employees exposed to or diagnosed with COVID-19.

Employees who test positive for COVID-19, or who display one or more of the principal symptoms of COVID-19, should remain in their home or place of residence, even if they are otherwise permitted to leave under Executive Order 2020-21 or any executive order that may follow it (note: on April 9 Executive Order 2020-21 was rescinded and replaced by Executive Order 2020-42), until:

• • Three days have passed since their symptoms have resolved, and
  • Seven days have passed since symptoms first appeared or since the test yielding a positive result was administered.

These requirements cease to apply to anyone who, after showing symptoms, receives a negative COVID-19 test.

Employees who have been in close contact with someone who tests positive for COVID-19 are instructed to remain home until 14 days have passed since contact, or the symptomatic person receives a negative COVID-19 test. 

• • This excludes healthcare professionals, health facility workers, first responders, child protective services employees, employees of child caring institutions, and correctional facility workers,

Employers are prohibited from terminating or otherwise penalizing employees who stay home from work under the terms of the Order, unless the employee returns to work before the time periods specified above have lapsed.

Employers must treat employees as if they were taking leave under Michigan’s Paid Medical Leave Act (PMLA) (MCL §408.961 et seq). Leave must be allowed for the duration of the employee’s need as defined under the Order. The employer may decrement the employee’s PMLA hours or, if the employee has exhausted time, provide unpaid leave. (Note that the Order applies to all employers, even those with fewer than 50 employees who are not required to provide accrued time under PMLA.)

Nothing in the Order prohibits an employer from disciplining or discharging an employee who is allowed to return to work under the Order but refuses to do so.

The Order is in effect until the end of the declared states of emergency and disaster.

Seattle, WA Paid Sick and Safe Time Emergency Rule

On April 8, 2020, Seattle’s Office of Labor Standards (OLS) issued an Emergency Rule (SHRR 70-080) indicating that employers may not require a doctor’s note or other healthcare provider certification during the COVID-19 outbreak, citing that it poses an “unreasonable burden” on employees. Employers are instructed to accept alternative methods of verification such as an oral or written statement from the employee, or documentation from other individuals such as service providers, social workers, case managers or legal advocates stating that, to their knowledge, the employee is using PSST for a covered purpose.  The Rule is in effect through June 7, 2020.

More COVID-19 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.