The following is a short summary of recent sick time changes related to COVID-19 around the country. In general, when there is a conflict of federal, state and local laws, the law most beneficial to the employee prevails. Clients are encouraged to contact their Engage HR Consultant for further information.
If a state is not listed, it means that no COVID-19 specific sick time laws for private employers have been passed to-date.
No paid leave updates for Coronavirus. The Alaska Family Leave Act (AFLA) provides a job-protected absence for a qualifying condition.
The Industrial Commission of Arizona issued FAQs regarding earned paid sick leave in the wake of COVID-19, and noted that Arizona employees may use their available paid sick time in the following circumstances:
To provide clarity to California employers and employees, the California Department of Industrial Relations (DIR) issued FAQs regarding the enforcement of paid sick leave, employers’ ability to request documentation from employees, and compensation. The DIR clarified that employees may use their available paid sick leave for preventative care, such as “self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities,” and for “other situations where an employee may exercise their right to take paid sick leave, or an employer may allow paid sick leave for preventative care.” Employers must keep in mind that they cannot force an employee to use paid leave, as it is employees’ choice whether to use their available sick leave. The DIR also reminded employees that if they exhaust their available sick leave time, they can use their available vacation or paid time off to cover their absence(s).
For employees, who exhaust their sick leave, vacation and PTO, and work for employers with 25 or more employees, such employees may take school-related activities leave for up to 40 hours per year, in part, for school emergency, that includes the “closure or unexpected unavailability of the school or child care provided, excluding planned holidays.” Whether an employee will be paid for such leave will depend on their employer’s leave policy.
The DIR also confirmed that reporting time pay does apply during a state of emergency, provided that the state of emergency does not include a recommendation to cease operations in the state.
To help essential food-sector workers, on April 16, 2020, Governor Gavin Newsom signed an executive order, granting two weeks of supplemental paid sick leave to essential food-sector employees, and requiring more frequent handwashing at food facilities.
Additionally, the Mayors of Los Angeles, San Jose and San Francisco have adopted temporary paid sick leave laws, requiring certain employers exempt from the FFCRA to provide such leave to workers in those localities. See this comprehensive California-specific Engage Client Alert for details.
Update - September 9, 2020
On September 9, 2020, Governor Newsome signed into law COVID-19 related Assembly Bill 1867 (link here). In addition to codifying the required for food employees working in food facilities to wash their hands every thirty (30) minutes and additionally as needed, the new law codifies the Governor’s Executive Order (“EO”) N-51-20 that addresses COVID-19 supplemental paid sick leave for eligible food sector workers. Click here to view Engage’s April 29, 2020 Client Alert that discusses, in part, the EO N-51-20.
Per the new law, if an employer provided an eligible food sector employee with the equivalent amount of supplemental COVID paid sick leave prior to the enactment of the law on September 9, 2020, the employer is not required to provide additional COVID-19 supplemental leave pursuant to the new law. Notably, the new law states that (1) the requirement to provide eligible food sector workers with COVID supplemental paid sick leave applies retroactively to April 16, 2020 and will expire on either December 31, 2020 or upon the expiration of any extension of the federal Families First Coronavirus Response Act (“FFCRA”), whichever is later; and (2) a food sector worker is entitled to continue their COVID supplemental paid sick leave after the expiration of the new law if the worker was on such leave at the time of the expiration.
Additionally, similar to the various California counties in the Spring of 2020, the new statewide law expands the availability of COVID-related paid sick leave pursuant to the FFCRA to eligible non-food-sector workers, who leave their homes or place of residence, to work for a California employer with 500 or more employees in the United States, the District of Columbia, or any U.S. territory. Like the FFCRA, eligible full-time employees can use up to 80 hours of COVID supplemental paid sick leave. If the worker is not a full-time employee or firefighter, the eligible worker’s leave hours will be determined per one of the two methods described below:
For covered employers of non-food-sector workers, beginning the first full pay period after the September 9, 2020 enactment of the new law, the employers must provide eligible employees of the amount of COVID supplemental paid sick leave available on their itemized wage statements or on a separate writing provided to the employee on the designated pay date.
Of importance, the non-food-sector-worker statewide COVID supplemental paid sick leave requirement applies to any entity, including public entities, employing health care providers and emergency responders, as defined by federal regulations but who elected to exclude health care providers and emergency responders From emergency paid sick leave per the FFCRA. The non-food-sector-worker COVID-19 supplemental paid sick leave is scheduled to take effect 10 days after the law’s September 9, 2020 enactment and expire on December 31, 2020 or with the expiration of any extension of the FFCRA.
Please note that the new California statewide COVID supplemental paid sick leave is in addition regular paid sick leave provided pursuant to the California mandated regular sick leave pursuant to the California Healthy Workplace Healthy Family Act of 2014, and covered employers must retain records documenting the statewide COVID supplemental paid sick leave for at least three years.
ADDITIONAL CALIFORNIA ALERTS TO NOTE:
As noted in Engage’s Client Alert (link here), on March 27, 2020, the City of Los Angeles passed an ordinance and the Los Angeles Mayor Eric Garcetti issued an order requiring employers with 500 or more employees in the City of Los Angeles or 2,000 or more employees in the U.S. to provide COVID-19 supplemental paid sick leave. Per the ordinance, to be eligible for the COVID-19 paid sick leave, employees must have worked in the City of Los Angeles during the time period from February 2, 2020 to March 4, 2020.
On February 10, 2021, Mayor Eric Garcetti issued a revised order (link here), allowing employees who have worked for the same covered employer for 60 days to receive leave under the ordinance. Additionally, covered employers now must use an employee’s two-week average pay over the past 60 days of employment to identify their COVID supplemental paid sick leave hours.
San José
On January 5, 2021, San José unanimously passed a revised COVID-19 paid sick leave ordinance (link here), which is effective January 1, 2021 through June 30, 2021 unless extended. Notably, unlike the original ordinance which applied only to private San José employers not covered by the federal Families First Coronavirus Response Act (FFCRA) or employers able to exempt themselves from providing FFCRA leave, the new ordinance applies to all San José employers. Eligible employees, who have worked at least 2 hours within the City of San José and are unable to telework, may use paid sick leave under the revised ordinance if the employee is unable to work for any of the following reasons:
San José employers are exempt from the revised ordinance if they provide “some combination of paid personal leave at least equivalent to the paid sick time required by” the revised ordinance. Please click here to review the FAQs regarding San José’s revised COVID-19 paid sick leave law.
Los Angeles County
On January 26, 2021, the County of Los Angeles amended its COVID-19 supplemental paid sick leave law (link here), and made it retroactive from January 1, 2021 and “until two calendar weeks after the expiration of the COVID-19 local emergency as ratified and declared by the [Los Angeles County] Board of Supervisors.” Unlike the original ordinance which applied exclusively to private employers with 500 or more employees nationwide, the amended COVID-19 sick leave ordinance requires all private employers in unincorporated areas of Los Angeles County to provide the COVID-19 paid sick leave benefits to eligible employees. Similar to the original ordinance, employers may opt not to provide paid sick leave benefits to emergency responders and health care providers.
The Colorado Department of Labor and Employment issued amended Colorado Health Emergency Leave with Pay (“Colorado HELP”) Rules on March 26. Please see the state specific Engage Client Alert issued on April 1 for details.
While the state has not specifically passed COVID-19 related sick time, the state sick time laws may apply to COVID-19.
While Delaware has not implemented specific COVID-19 time off, they did encourage employers to provide flexible time off policies.
The Accrued Sick and Safe Leave Act of 2008 was expanded for a period of 90 days. Employers with employees between 40 and 499 employees must provide up to 80 hours of “declaration of emergency” leave for any reason covered by Families First Coronavirus Response Act (FFCRA). However covered family members follow the definition under the Accrued Sick and Safe Leave Act. Please speak with your HR Consultant for more information.
While the state has not specifically passed COVID-19 related sick time, local sick time laws, such as Miami-Dade sick time laws may apply to COVID-19.
While the state has not specifically passed COVID-19 related sick time, the Illinois Sick Leave Act and local laws, such as the Chicago and Cook County Sick Leave ordinances may apply to COVID-19.
Iowa employers must follow their own policies and practices for providing time off but are not required to create new policies. The Iowa Workforce Development encourages employees to contact their employers regarding “potential telecommuting, sick leave, PTO, FMLA, Disability, Worker’s Compensation and other options they may be offering” in the following circumstances:
Under the Maine Family Medical Leave Requirements Act (“MFMLRA”) laws, an employee that has worked for the same employer for at least 12 consecutive months is entitled to up to 10 work weeks of job-protected unpaid Medical Leave in any two years unless the work site has fewer than 15 employees.
Maine’s Family Sick Leave laws allow that if an employer provides paid leave, then the employer shall allow an employee to use the paid leave for the care of an immediate family member who is ill. This does not apply to the illness of an employee. The employee can choose what type of leave they are going to use, if the employer provides multiple benefits, such as sick, vacation, or personal with limitations.
The Maryland Department of Labor’s Division of Labor and Industry enforces the Maryland Healthy Working Families Act, also known as earned Sick and Safe Leave, which may be applicable to employees who need to take off from work due to COVID-19.
As of 4/27, COVID-19 specific sick time for private employers was not passed in the state. Other state laws such as the Massachusetts Small Necessities Leave Act may be applicable.
Paid Sick Leave/COVID Executive Order:
In March 2019, the Michigan Paid Medical Leave Act went into effect and required employers with 50 or more employees to provide eligible employees an opportunity to accrue paid medical leave at the rate of at least one hour of leave for every 35 hours worked, for up to 40 hours per year. In response to the COVID-19 pandemic, Michigan’s Governor issued an Executive Order earlier this year that requires individuals to stay home if they are at particular risk of infecting others with COVID-19. Employees may stay home if they are (1) are positive for COVID-19; (2) have principal symptoms of COVID-19; or (3) have been in close contact with someone who is positive or has principal symptoms of COVID-19. Employers may not discharge, discipline or otherwise retaliate against an employee for staying home under such circumstances. The Executive Order is separate from the Michigan Paid Medical Leave Act; however, the Executive Order provides that employers must treat covered employees as if they are taking medical leave under the Michigan Paid Medical Leave Act. To the extent that the employee has no paid leave under the Michigan Paid Medical Leave Act, the covered COVID-19 leave may be unpaid. Michigan’s Paid Sick Leave law defines “Employer” as any person, firm, business, educational institution, nonprofit agency, corporation, limited liability company, government entity, or other entity that employs 50 or more individuals. The definition of “Employer” is the same in the Executive Order, however, the 50-employee requirement does not apply.
On March 18, 2020, the City of Minneapolis, Minnesota issued a frequently asked questions guide (FAQs) regarding the application of Minneapolis’ Sick and Safe Time Ordinance to absences related to COVID-19. The Minneapolis Sick and Safe Time Ordinance covers any employer that has a physical location within the boundaries of the City of Minneapolis; and employs employees who work within Minneapolis for at least 80 hours in a year.
Employers with six (6) or more employees must provide paid sick and safe time. Employers with five (5) or fewer employees must provide sick and safe time, but they may choose to provide it unpaid. Prior to the COVID-19 outbreak, sick and safe time included illness or injury, medical treatment or preventative care, domestic or sexual assault, and care of a family member. In general, it is compensated at normal rates of pay and affects employers that do not already provide comparable or more generous time off.
The FAQs state that an employee may now also use accrued sick and safe leave for absences related to:
1. Coronavirus screening;
2. Care or quarantine due to COVID-19 symptoms or infection;
3. Quarantine following close contact with a COVID-19-infected or symptomatic person;
4. Caring for family members whose school or place of care was closed due to COVID-19; and
5. Workplace closures by order of a public official.
The FAQs clarify that business closures without an order of a public official, or employee absences without reason to believe the employee has contracted the illness are not covered uses under the ordinance. Finally, employees may only use sick and safe time to cover scheduled shifts or the shifts the employee would have expected to work had their work not been ordered closed by a public official.
All covered employees, including employees of "non-resident" employers, are entitled to accrued sick and safe time based upon hours worked in the City of Minneapolis since July 1, 2017.
A link to Minneapolis’ Sick and Safe Time Ordinance FAQs, is provided below:http://sicktimeinfo.minneapolismn.gov/uploads/9/6/3/1/96313024/covid-19_and_sst_3_18_20.pdf
The full text of the Minneapolis Ordinance is available at: http://www.ci.minneapolis.mn.us/government/ord/index.htm
The city of Duluth clarified that time under their Earned Sick and Safe Time ordinance can also be used for COVID-19 related issues.
Nevada has an existing state mandatory paid sick leave that went into effect January 1, 2020. The Department of Labor indicated that employees subject to a mandatory quarantine order by a government entity can elect to use their state mandatory paid sick leave but cannot be required to do so.
For the complete guidance, visit this link: https://www.nj.gov/labor/worker-protections/earnedsick/covid.shtml
The New Jersey Family Leave Act, (“NJFLA”) has been expanded in its coverage to allow employees forced to take time off to care for a family member during the COVID-19 outbreak with up to 12 weeks of unpaid family leave in a 24-month period with job protection.
Employees will be eligible for leave to care for a family member as a result of an epidemic of a communicable disease, or efforts to prevent spread of a communicable disease. These job protections will extend to employees requiring leave to provide care or treatment for their child if the child's school or place of care is closed in response to a public health emergency.
For details, please see the state-specific Engage Client Alert issued on April 7.
Update: As of 9/27.2020
The Oregon Paid Sick Leave law went into effect prior to the COVID-19 pandemic.The state released a COVID-19 sick leave poster, although it does not appear to be tied to a mandatory posting obligation, and instead seems to be informational.
Employees have a right to use sick time for a closure of their child’s school (or place of care) by order of a public official due to a public health emergency. While sick time is not without limit, it may be that the employee and employer can work out for a more flexible arrangement to allow for teleworking or working alternate hours. Additionally, an employee who works for an employee with at least 25 employees may be eligible to take up to 12 weeks of protected time for any “serious health condition” for you or a family member develops under the Oregon Family Leave Act.
Updated 9/30/2020
On March 18, 2020, the City of Philadelphia announced an expansion to its “Promoting Healthy Families and Workplace Act” as result of the coronavirus outbreak.
The Act applies to all full-time and part-time employees who work 40 hours in a year (excludes independent contractors, seasonal workers, adjunct professors, interns, health-care professional pool employees, state and federal employees and employees hired for a term of less than six months).
Under the law, employees accrue one hour of sick time for every 40 hours worked (including overtime hours). Employees who are exempt administrative, executive, or professional employees accrue sick time based on the employee’s normal workweek or a 40-hour workweek, whichever is less.
Employers must allow employees to use the 40 hours of paid sick time on the employee’s oral or written request for his or her own qualifying need, or that of a “family member,” for:
Under the new COVID-19 regulations, an employee may also be granted leave for the following reasons:
Documentation will need to be provided for COVID-19 leave. Under the new COVID-19 regulations, “reasonable documentation” includes:
Fair Workweek Ordinance - The City also announced that it will not enforce the predictability pay requirements of the City’s Fair Workweek Ordinance. This policy had required covered businesses to pay compensation to employees when the employee’s schedule was changed from the employer’s estimate of expected scheduled hours.
The City of Pittsburgh has provided guidelines on its website regarding the city’s Paid Sick Days Act.
The Act requires employers with 15 or more employees to allow employees to accrue up to 40 hours of paid sick leave per year for every 35 hours worked for an employer within the geographic boundaries of Pittsburgh.
Employers with fewer than 15 workers must allow employees to accrue paid sick leave up to 24 hours per year, and only unpaid sick time during the first year the Act is in effect (employees may accrue paid sick time beginning one year after the effective date of the Act).
The state expanded use of Temporary Caregiver Insurance (TCI) to include if a person has to take leave in order to care for a child whose school/childcare has been interrupted due to COVID-19. Under TCI, employees are entitled up to four weeks of paid leave to care for someone with a serious illness. In addition, Rhode Island also offers Temporary Disability Insurance (TDI), which employees may qualify for if a health care provider certifies them to be functionally unable to perform their customary and regular work duties.
Employees can also use paid sick leave under the Healthy and Safe Families and Workplaces Act (HSFWA), which requires employers with more than 18 employees to provide up to 40 hours of paid sick leave. This time may be taken for COVID-19 related illnesses, or to care for someone with COVID-19, if they have to self-quarantine, and if the employee’s place of business is closed by order of a public official or to care for a child whose school or place of care has been closed by order of a public health official.
While the state has not passed COVID-19 specific sick time for private employers, the Vermont Earned Sick Time Act may apply.
Washington has issued guidance and common questions on its paid sick leave law and COVID-19. The guidance clarifies that an employee can use accrued paid sick leave if their place of business is shut down by a public official due to COVID-19. Employees can use accrued paid sick leave if their child's school or place of care is closed due to COVID-19.
An employer cannot require an employee to work from home instead of using their accrued paid sick leave (see this link for related FAQs). On April 13, 2020, Washington Governor Inslee issued a proclamation that, in part, requires all employers to provide accommodations to high-risk employees, which includes (1) workers 65 years of age or older, and (2) workers of any age who have underlying health conditions.
The City Council amended its Paid Sick and Safe Time (PSST) Ordinance to allow paid leave for employees when any of their family member’s school or place of care has been closed for any reason.
Prior to this amendment, an employee was only granted paid leave when their child’s place of school or care was closed AND the closing had to be due to the order of a public health official for a health-related reason. Also, employers with 250 or more full-time employees must provide paid leave to employees when their place of business has been closed for any health or safety reason. Employees accrue paid leave at one hour per every 30 hours worked. The changes became effective March 18, 2020.