COVID-19 Small Business Resource Center

Federal

The Occupational Safety and Health Administration (OSHA) has issued updated guidance on recording occupational illnesses related to COVID-19. The guidance took effect May 26, 2020 and remains in effect until further notice.

Background:

Under federal regulations, employers with more than 10 employees must keep records of work-related injuries and illnesses, unless the business is classified under one of the partially exempt low-hazard industries. However, all employers must report to OSHA work-related injuries and illnesses that result in a fatality or an employee's in-patient hospitalization, amputation, or loss of an eye.

Updated Guidance:

Under OSHA's recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19 if:

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
  2. The case is work-related as defined by 29 CFR § 1904.5; and
  3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

OSHA says employers should be taking action to determine whether employee COVID-19 illnesses are work-related and thus recordable. In determining whether an employer has complied with this obligation, OSHA will consider:

  • The reasonableness of the investigation. In most circumstances when an employer learns of an employee's COVID-19 illness, the employer may:
    • Ask the employee how they believe they contracted COVID-19;
    • While respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness; and
    • Review the employee's work environment for potential exposure to determine if there are any other instances of workers in that environment contracting COVID-19 illness.
  • The evidence available. The evidence that a COVID-19 illness was work-related will be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee's COVID-19 illness, then that information would be taken into account as well in determining whether an employer made a reasonable determination.
  • The evidence that a COVID-19 illness was contracted at work. Evidence that may weigh in favor of or against work-relatedness includes:
    • Whether several cases develop among workers who work closely together and there is no alternative explanation.
    • Whether it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
    • Whether their job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
    • Whether the employee is the only worker to contract COVID-19 in their vicinity and their job duties don't include having frequent contact with the general public, regardless of the rate of community spread.
    • Whether the employee, outside the workplace, closely and frequently associates with someone (such as, a family member, significant other, or close friend) who: (1) has COVID-19; (2) isn't a coworker; and (3) exposes the employee during the period in which the individual is likely infectious.

Compliance Recommendations:

Employers should make a good-faith inquiry about whether COVID-19 cases are work-related, as described above. If the criteria are met, COVID-19 should be coded as a respiratory illness on the OSHA Form 300. Because COVID-19 is an illness, if an employee requests that their name not be entered on the log, the employer must comply.

Updated: May 14, 2020

The Department of Homeland Security (DHS) has issued a temporary policy regarding expired documents used for Form I-9 purposes. The I-9 is used to verify a new hire's identity and work authorization.

Background:

To complete Section 2 of the I-9, employees must present unexpired documents that verify their identity and employment authorization. The I-9 Form includes a List of Acceptable Documents (List A, List B, and List C). An employee must present one document from List A or one document from List B and one document from List C.

  • List A documents: establish both identity and employment authorization
  • List B documents: establish identity only
  • List C documents: establish employment authorization only

Temporary Policy:

On May 1, 2020, the DHS issued a temporary policy to address the challenges individuals may experience when renewing a state driver's license, a state ID card, or other List B identity document due to the restrictions put in place for COVID-19.

Documents set to expire without extensions from issuing authority:

Beginning May 1, 2020, identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority (such as the state DMV), may be treated the same as if the employee presented a valid receipt for an acceptable document.

In such cases, the employer should:

  • Record the document information in Section 2 under List B, as applicable; and
  • Enter the word "COVID-19" in the Additional Information Field.

Note: If the List B document expired before March 1, 2020, the temporary policy won't apply, and the employer won't be able to accept it.

Within 90 days after the DHS's termination of this temporary policy, the employee must present a valid unexpired document to replace the expired document presented when they were initially hired. If necessary, the employee may choose to present a different List A or List B document(s) and you would then record the new document information in the additional Information field.

When the employee later presents an unexpired document, in the Section 2 Additional information field you should:

  • Record the number and other required document information from the actual document presented; and
  • Initial and date the change.

Documents set to expire with extensions from issuing authority:

If the employee's List B identity document expired on or after March 1, 2020, and the issuing authority has extended the document expiration date due to COVID-19, the document is acceptable as a List B document (and is not considered a receipt) during the extension timeframe specified by the issuing authority. Note: If the List B document expired before March 1, 2020, the temporary policy won't apply, and the employer won't be able to accept it.

In such cases, employers should:

  • Enter the document's expiration date in Section 2; and
  • Enter "COVID-19 EXT" in the Additional Information Field.

Employers may also attach a copy of a webpage or other notice indicating that the issuing authority has extended the document expiration, such as the state DMV website. For extended documents, the employee isn't required to later present a valid unexpired document to verify identity.

E-Verify:

E-Verify participating employers should use the employee's expired List B document number from Section 2 of the Form I-9 to create an E-Verify case as usual within three days of the date of hire.

Compliance Recommendations

When new hires present documents covered by the temporary policy, employers should follow the applicable procedures above. At this time, the DHS hasn't relaxed current I-9 standards related to expiring employment authorization documents.

Updated: May 20, 2020

The Department of Homeland Security (DHS) has announced that employers will be allowed to inspect Form I-9 documents remotely in certain situations related to the coronavirus disease 2019 (COVID-19).

Background:

The Form I-9 is used to verify a new hire's identity and work authorization. All employers must ensure that each employee properly completes the I-9 at the time of hire. The form is broken out into multiple sections:

Section Name

Section Overview

Completion Deadline

Section 1

Employee must attest that they are authorized to work in the U.S.

The employee's first day of work for pay

Section 2

Employee must present certain identity and work authorization documents. The employer must examine the document(s) to determine whether they reasonably appear to be genuine and relate to the employee. Employers must record the document number(s) here.

Within 3 business days

Section 3

If an employee's employment authorization expires, they must present new or updated document(s) and the employer must examine and record the document number(s) here. Employers may also be required to complete this section when rehiring a former employee, depending on how much time has passed.

No later than the date employment authorization expires

List of Acceptable Documents

70

This section does not need to be completed. It's for informational purposes only.

Generally, employers must inspect Section 2 documents in the employee's physical presence.

Temporary Guidance for Remote I-9 Document Inspection:

Covered Employers:

The temporary changes apply only to employers and workplaces that are operating remotely as a result of COVID-19. If there are employees physically present at a work location, no exceptions are being implemented at this time.

Temporary Changes:

The DHS says covered employers with employees taking physical proximity precautions due to COVID-19 will be temporarily exempt from the requirement to review the Section 2 documents in the employee's physical presence. However, employers must inspect the Section 2 documents remotely (such as, over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.

Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9. Once acceptable documents have been physically inspected, the employer should add "documents physically examined" with the date of inspection to the Section 2 additional information field on the Form I-9, or to Section 3 as appropriate. Employers should enter "COVID-19" as the reason for the physical inspection delay.

Employers that use this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employer.

Expiration of Exemption:

The temporary changes were set to expire May 19, 2020, or within three business days after the termination of the National Emergency, whichever occurs first. However, the DHS has extended them for another 30 days.

Compliance Recommendations:

Employers that qualify for the temporary exemption should ensure they comply with the rules outlined above.

The Department of Labor (DOL) has released a temporary rule implementing the leave provisions of the Families First Coronavirus Response Act (FFCRA). The temporary rule was released on April 1, 2020 and is effective immediately. It defines key terms and makes important clarifications regarding the leave requirements.

Background:

Effective April 1, 2020, the FFCRA requires employers with fewer than 500 employees to provide:

  • Emergency paid sick leave (EPSL): Up to 80 hours of emergency paid sick leave (EPSL) to employees when they are unable to work (or telework) because of a number of COVID-19 related reasons.
  • Public health emergency leave (PHEL)/Expanded FMLA: Up to 12 weeks of leave to care for their son or daughter under 18 years of age if their school or place of care has been closed, or their childcare provider is unavailable, due to a public health emergency. As first written, the FFCRA indicated the first 10 days of PHEL may be unpaid, but the remainder must be paid.

Employers that provide paid leave under the FFCRA are entitled to certain tax credits.

Exemptions:

The law also gave the DOL the authority to issue regulations exempting employers with fewer than 50 employees if it would jeopardize the viability of the business.

Under the law, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the application of the EPSL and/or the PHEL requirement.

Temporary Rule:

The following is a high-level summary of some of the definitions and clarifications included in the temporary rule.

Definitions:

  • Son or Daughter. A biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age, or 18 years of age or older who is incapable of self-care because of a mental or physical disability.
  • Subject to a 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 the employee to be unable to work even though their employer has work that the employee could perform but for the order. This also includes when a federal, state, or local government authority has advised categories of citizens (such as those of certain age ranges or with certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of employees to be unable to work even though their employers have work for them.
  • Caring for an Individual in Quarantine/Isolation/Self-Quarantine. An employee's immediate family member, a person who regularly resides in the employee's home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if they were quarantined or self-quarantined. An employee may take EPSL under this provision if the employee is unable to perform work for their employer and if the individual depends on the employee to care for them and is either:
    • Subject to a quarantine or isolation order as defined above; or
    • Has been advised to self-quarantine by a health care provider because of a belief that the individual has, or may have, COVID-19, or is particularly vulnerable to COVID-19.
  • Caring for a Son or Daughter. Such leave is permitted only if no other suitable person is available to care for the son or daughter during the period of such leave.
  • Full-Time Employees. Those normally scheduled to work at least 40 hours each workweek. Under the law, a full-time employee is entitled to up to 80 hours of EPSL and a part-time employee is generally entitled to ESPL in the number of hours the employee is normally scheduled to work over two workweeks.
  • Healthcare Provider. For the purposes of exemption from the leave requirements, a health care provider is anyone employed at any doctor's office, hospital, health care center, clinic, postsecondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
  • Emergency Responders. Anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and individuals with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.

Clarifications:

Regular Rate of Pay

For the purposes of EPSL, the employer must generally pay employees their regular rate of pay (as defined by the Fair Labor Standards Act) or the applicable minimum wage, whichever is higher, up to a maximum of $511 per day (and a total of $5,110). However, leave to care for an individual on quarantine/isolation/self-quarantine or to care for a child whose school or daycare is closed or childcare provider is unavailable may be compensated at 2/3 of the employee's regular rate of pay (or the applicable minimum wage if higher), up to a maximum of $200 per day (and a total of $2,000).

For the purposes PHEL/Expanded FMLA, the paid portion of leave must be at a rate of no less than two-thirds the employee's regular rate of pay, as defined by the FLSA, up to a maximum of $200 per day.

The temporary rule requires employers to use a weighted average of the employee's regular rate of pay for the purposes of the leave, following this two-step method:

  • Use the rules contained in the FLSA (see a summary here) to compute the regular rate for each full workweek in which the employee has been employed over the lesser of:
    • The six-month period ending on the date on which the employee takes leave; or
    • The entire period of employment;
  • Compute the average of the weekly regular rates, weighted by the number of hours worked for each workweek.

Note: For employees who are paid with commissions, tips, or piece rates, these amounts will be incorporated into the above calculation to the same extent they are included in the calculation of the regular rate under the FLSA.

Business Closures and Furloughs

The temporary rule further clarifies that if no work is available for the employee, the employee isn't entitled to leave. For instance, if the employer temporarily ceases operations because of a lack of work or the state has ordered the business to close because of COVID-19, employees wouldn't be entitled to leave under the FFCRA.

Note: Some state/local laws require employers to provide paid leave when the business closes because of a public health emergency.

Small Employer Exemption:

The exemption for employers with fewer than 50 employees is limited to the requirements to provide EPSL and PHEL/Expanded FMLA to an employee who is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, for COVID-19 related reasons if it would jeopardize the viability of the business.

The temporary rule clarifies that to claim the exemption, an authorized officer of the business must determine that:

  • The leave requested would result in the small business's expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  • The absence of the employee requesting such leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
  • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee requesting leave, and this labor or services are needed for the small business to operate at a minimal capacity.

To elect this exemption, the employer must document that a determination has been made pursuant to the above criteria. The employer should retain these records in its files for at least four years. The employer is still required to post the required FFCRA notice (see below).

Employee Documentation:

Prior to taking leave under the FFCRA leave, an employee must provide documentation containing the following information:

  • Employee's name;
  • Date(s) for which leave is requested;
  • Qualifying reason for the leave; and
  • Oral or written statement that the employee is unable to work because of a qualified reason.

Additional documentation is required depending on the reason for the need for leave:

  • A quarantine or isolation order. The employee must also provide the name of the government entity that issued the order.
  • A healthcare provider advised self-isolation. The employee must also provide the name of the healthcare provider.
  • To care for a son or daughter. An employee must also provide:
    • The name of the son or daughter;
    • The name of the school, place of care, or child care provider that has closed or become unavailable; and
    • A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave under the FFCRA.

The employer may also request an employee to provide additional material needed for the employer to support a request for tax credits pursuant to the FFCRA. The temporary rule indicates that an employer isn't required to provide leave if materials sufficient to support the applicable tax credit haven't been provided.

Employer Notice and Recordkeeping:

The FFCRA requires employers to post a notice about the law's leave requirements. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or by posting this notice on an employee information internal or external website.

An employer is required to retain all documentation provided by employees for four years, regardless whether leave was granted or denied. If an employee provided oral statements to support their request for the leave, the employer is required to document and maintain this information.

In order to claim tax credits from the Internal Revenue Service (IRS), the temporary rule also advises an employer to maintain the following records for four years:

  • How the employer determined the amount of paid leave eligible for the credit, including records of work, telework, and leave;
  • How the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
  • Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
  • Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third-party payers to meet their employment tax obligations, records of information provided to the third-party payer regarding the employer's entitlement to the credit claimed on IRS Form 941; and
  • Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.

Paid and Unpaid PHEL/Expanded FMLA:

The temporary rule clarifies that the unpaid portion of PHEL/Expanded FMLA is two weeks, rather than the "10 days" used in the text of the FFCRA. The change to two weeks is meant to address situations in which employees don't work a five-day workweek. The employee may elect to substitute EPSL or other paid leave provided by the employer during this unpaid period, at two-thirds their regular rate of pay.

EPSL and Other Sources of Leave:

The temporary rule further clarifies that EPSL leave is in addition to, and not a substitute for, other sources of leave that the employee had already accrued, was already entitled to, or had already used, before the FFCRA became effective 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.

Compliance Recommendations:

Employers should consider reading the temporary rule in full and should take the necessary steps to ensure compliance with the leave, documentation, notice, recordkeeping, and other requirements of the FFCRA and the rule. Employers should continue to monitor the guidance for additional changes and check back regularly for updated clarifications.

Alaska

The Alaska Department of Labor has adopted an emergency rule that expands the state's unemployment insurance notice requirements. The rule takes effect immediately and expires on August 3, 2020, unless extended.

Background:

Under existing law, employers must post a notice about the availability of unemployment insurance benefits.

Emergency Rule:

The emergency rule requires that, at the time of separation, employers must provide employees with a written notice with instructions on how to file a claim for unemployment benefits and the Division of Employment and Training Services' contact information for filing a claim.

Employers must provide the notice as soon as practical, but no later than seven days from the employee's last day of work.

Employers must deliver the notice either in person, by mail to the employee's last known address, or by email, if correspondence in this form was previously authorized.

Compliance Recommendations:

Employers with employees in Alaska must ensure compliance with the emergency rule.

Arkansas

The Arkansas Division of Workforce Services has adopted an emergency rule that requires employers to provide an unemployment insurance notice to employees upon separation from employment. The emergency rule takes effect April 27, 2020 and expires on December 31, 2020.

From April 27, 2020 to December 31, 2020, employers must provide the following notice to employees upon separation from the company:

NOTICE TO EMPLOYEE

Unemployment Insurance (UI) benefits are available to workers who are unemployed and who meet the requirements of Arkansas UI eligibility laws. You may file a UI claim in the first week that employment stops, or work hours are reduced.

You will need to provide the Arkansas Division of Workforce Services with the following information for the Division to process your claim:

  1. Your Full legal name
  2. Your Social Security Number
  3. Your authorization to work (if you are not a US Citizen or resident)

To file a UI claim online, visit our Arkansas' online claims filing site at https://www.ezarc.adws.arkansas.gov/ from 6 am through 6 pm Sunday through Saturday.

To file a UI claim by telephone, call 1-844-908-2178 or 501-534-6304 from 8 a.m to 3:30 p.m Monday through Friday.

To file a UI claim by paper, please visit your nearest Arkansas Workforce Center. To find the nearest Arkansas Workforce Center please visit www.dws.arkansas.gov/contact.

For general assistance or more information about filing a UI claim, call 1-855-225-4440 or 501-682-2121. HOURS: Monday – Friday, 8am - 3:30pm

If you have questions about the status of your UI claim, you may call your local office or 1-855-225-4440.

Compliance Recommendations:

Employers with employees in Arkansas must ensure compliance with the emergency rule.

Chicago, IL

Chicago has published rules and enacted two ordinances that will expand coverage under the city's paid sick leave law, create new notice and recordkeeping requirements, and prohibit adverse action against employees because of COVID-19. The changes take effect on July 1, 2020.

Expanded Paid Sick Leave Coverage:

All employers with at least one covered employee are required to provide paid sick leave, regardless of whether the employer has a worksite in the city or is subject to the city's business license requirements.

To be considered a covered employee, the employee must work:

  • Within the city for at least two hours in any two-week period; and
  • At least 80 hours for an employer within any 120-day period.

The definition of a covered employee has also been expanded to expressly include:

  • An outside salesperson.
  • A member of a religious corporation or organization.
  • A student at, and employed by, an accredited Illinois college or university.
  • Motor carriers regulated by the U.S. Secretary of Transportation or the state.

Notice Requirements:

New rules make clear that employers must post a required notice about minimum wage and paid sick leave through the employer's usual methods of communication for such notices (paper posting or electronic dissemination through their internal communication channels). When posting a paper notice, the notice must be printed on and scaled to fill a sheet of paper that measures 11 inches by 17 inches.

The new rules also require that the minimum wage and paid sick leave notice employers must provide with the first paycheck be printed on and scaled to fit a sheet of paper that measures 8.5 inches by 11 inches. However, where employees are enrolled in direct deposit but have the option to review their pay stubs electronically, employers may provide the notice through the employers' usual methods of electronic communication.

The new rules add a requirement that the notice employers must provide with the first paycheck must also be provided annually with the first paycheck on or following July 1, whether by paper or electronic means.

All notices must be in English and any language(s) spoken by employees at the facility who aren't proficient in English and in which the city has provided non-English language notices.

Recordkeeping:

Currently, employers must maintain the following records for each covered employee for a period of no less than five years:

  • Name, mailing address, telephone number, and email address;
  • Occupation and job title;
  • Hire date;
  • Date the employee was eligible to use paid sick leave;
  • Number of hours of paid sick leave accrued or awarded;
  • Dates and number of hours of paid sick leave used;
  • Rates of pay;
  • Hours worked each day and each workweek;
  • Type of payment (hourly, salary, commission, etc.), straight-time and overtime pay, and total wages paid in each pay period;
  • Additions to and deductions from wages for each pay period and an explanation; and
  • Dates of payment of each pay period covered by each payment.

Effective July 1, 2020, employers must also keep a record of whether the covered employee is tipped, non-tipped, or performs duties of both tipped and non-tipped positions.

COVID-19 Protections:

Effective July 1, 2020, employers are prohibited from taking adverse action against a covered employee for obeying an order issued by the mayor, governor, the Chicago Department of Public Health, or a treating healthcare provider, requiring the individual to:

  • Stay at home to minimize the transmission of COVID-19;
  • Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;
  • Obey a quarantine order issued to the employee;
  • Obey an isolation order issued to the employee;
  • Obey an order issued by the Commissioner of Health regarding the duties of hospitals and other congregate facilities.

In addition, employers are prohibited from taking adverse action against an employee for caring for an individual subject to 1 through 3 above.

Compliance Recommendations:

Employers with covered employees should ensure compliance with the changes that take effect July 1, 2020.

Colorado

Updated: April 30, 2020

The Colorado Department of Labor and Employment (CDLE) has published an emergency rule that temporarily requires employers in certain industries to provide paid sick leave to employees for certain COVID-19 related purposes. Employees may be entitled to leave if they have flu-like symptoms or other respiratory illness symptoms and are being tested for COVID-19 or who are under instructions from a healthcare provider or government official to quarantine or isolate due to a risk of having COVID-19.

The emergency rule, as amended, took effect immediately on April 27, 2020 and will remain in effect for 30 days, or longer if the state of emergency declared by the governor continues.

Covered Employers:

The emergency rule requires employers in the following industries to provide paid sick leave to employees:

  • Leisure and hospitality;
  • Food services;
  • Child care;
  • Education (including transportation, food service, and related work at educational establishments);
  • Home health care, if working with elderly, disabled, ill, or otherwise high-risk individuals;
  • Nursing homes and community living facilities;
  • Retail establishments that sell groceries (as of March 26, 2020);
  • Food and beverage manufacturing (as of April 3, 2020);
  • Retail establishments (as of April 27, 2020);
  • Real estate sales and leasing (as of April 27, 2020);
  • Offices and office work (as of April 27, 2020);
  • Elective health services (as of April 27, 2020); and
  • Personal care services, such hair, beauty, spas, massage, tattoos, pet care, or substantially similar services (as of April 27, 2020).

Amendments of March 26, 2020:

Under amendments published on March 26, 2020, the CDLE extended the paid sick leave requirement to also cover retail establishments that sell groceries. The amendments also require all covered employers to provide paid sick leave to an employee who is under instructions from a healthcare provider to quarantine or isolate due to a risk of having COVID-19.

Amendments of April 3, 2020:

Under amendments published on April 3, 2020, the CDLE extended the paid sick leave requirement to also cover the food and beverage manufacturing industry.

Amendments of April 27, 2020:

Under amendments published on April 27,2020, the CDLE extended the paid sick leave requirement to include additional covered industries (see above). Additionally, the amount of leave that must be provided increased from a maximum of four days to a maximum of two weeks, the amount of pay required during leave decreased from full pay to 2/3 pay, and coverage expanded to other respiratory illness symptoms and those who are under instructions from a government official to quarantine or isolate due to a risk of having COVID-19.

Basic Leave Entitlement:

Effective April 27, 2020, covered employers must provide up to two weeks of paid sick leave to employees who have flu-like or other respiratory illness symptoms and are being tested for COVID-19 or are under instructions from a healthcare provider or government official to quarantine or isolate due to a risk of having COVID-19. The paid sick leave ends if the employee receives a negative COVID-19 test result after being fever-free for 72 hours, with other symptoms resolving as well. The leave must be at least seven calendar days (or ten calendar days for health care workers covered by the rules).

Employers are prohibited from terminating an employee for inability to provide documentation during an illness covered by the rule. See the text of the rule for details on documentation rules.

Interaction with Other Leave Policies:

If an employer already provides the paid leave necessary to meet the rule's requirements, the employer isn't required to provide additional leave. However, if an employee has already exhausted their paid leave allotment, and subsequently needs to take leave for covered COVID-19 purposes, they are entitled to the additional paid sick leave the emergency rule provides.

Pay During Leave:

Effective April 27, 2020, pay must be provided at 2/3 the employee's regular rate of pay.

Compliance Recommendations:

Covered employers should read the amended emergency rule and CDLE guidance in full and ensure compliance. Employers should also encourage employees who experience flu-like symptoms to remain out of the workplace and contact their health provider immediately.

Note: Effective April 1, 2020, the federal Families First Coronavirus Response Act requires certain employers to provide paid leave to employees impacted by COVID-19 and provide tax credits to employers that do. More information on these requirements may be found here.

District of Columbia

The District of Columbia has enacted an emergency ordinance that requires employers with 50-499 employees to provide paid leave to employees impacted by COVID-19. The emergency ordinance takes effect immediately and expires on July 9, 2020.

Background:

DC's Accrued Sick and Safe Leave Act ("the Act") requires employers to provide paid leave for an absence resulting from:

  • An employee's, or their family member's, physical or mental illness, injury, or medical condition;
  • An employee's, or their family member's, need to obtain a professional medical diagnosis or care; or
  • Stalking, domestic violence, or sexual abuse and the absence is directly related to medical, social, or legal services for the employee or their family member.

Emergency Ordinance:

On April 10, 2020, DC enacted an emergency ordinance that amends the Act to require that employers with between 50 and 499 employees provide paid leave for any of the reasons required under the federal Families First Coronavirus Response Act (FFCRA). Healthcare providers are exempt.

Use of Paid Leave:

Under the FFCRA (and therefore the emergency ordinance), employees are entitled to use paid leave when they are unable to work (or telework) because of the following reasons:

  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or is caring for an individual who is subject to such an order.
  • The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 or is caring for an individual who has been advised to self-quarantine.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19.
  • 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.

Employee Eligibility:

Under the emergency ordinance, employers must provide paid leave to any employee who started work for the employer at least 15 days before the request for leave.

Duration of Leave:

The emergency ordinance requires employers to provide paid leave to an employee in an amount sufficient to ensure that the employee be able to remain away from work for two full weeks (up to 80 hours), or, for part-time employees, the usual number of hours the employee works in a two-week period.

Pay During Leave:

During the leave, employees must be compensated at their regular rate of pay, which must equal or exceed the minimum wage. If an employee doesn't have a regular rate of pay, their regular rate must be determined by dividing their total gross earnings, including all tips, commission, piecework, or other earnings earned on an irregular basis for the most recent two-week period that the employee worked, by the number of hours the employee worked during that two-week period.

Employee Notice:

Employees must not be required to provide:

  • More than 48 hours' notice of the need to use the leave in non-emergency situations; or
  • More than reasonable notice of the employee's need to use such leave in the event of an emergency.

Certification:

Employers are prohibited from requiring an employee to provide certification of the need to use paid leave under the ordinance, unless both of the following conditions are met:

  • The employee uses three or more consecutive working days of the paid leave; and
  • The employer contributes payments toward a health insurance plan on behalf of the employee.

Where the employer is permitted to require certification, the employer must give the employee at least one week after their return to work to provide it.

Interplay with Other Leave:

An employer may require that an employee exhaust any available leave under federal or District law or an employer's own policies prior to use of additional leave under the emergency ordinance.

If the employee has exhausted their leave under the emergency ordinance, the employer must inform the employee of any paid or unpaid leave to which the employee may be entitled pursuant to federal law, other District law, or the employer's own policies.

Note: Barring guidance or rules indicating otherwise, this leave must be provided in addition to the leave required under the FFCRA.

Other Changes:

The ordinance also makes technical changes to several unemployment insurance compensation provisions in District law to align with the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, which expanded unemployment benefits, including who is eligible.

Compliance Recommendations:

Covered employers should ensure compliance with the emergency ordinance's paid leave requirements.

Note: In March, the District of Columbia amended its Family and Medical Leave Act (DCFMLA) to add a new category of leave known as declaration of emergency (DOE) leave. Unlike with the other types of DCFMLA leave, all employers with employees in DC must provide DOE leave. Additionally, all employees who work in DC are eligible for DOE leave, regardless of their length of service and number of hours worked during the 12-month period prior to the leave. More information on this law is available below.

The District of Columbia has enacted the COVID-19 Response Emergency Amendment Act of 2020 (the "Act"), which temporarily expands the D.C. Family and Medical Leave Act (DCFMLA) and temporarily expands eligibility for unemployment benefits for employees impacted by COVID-19. The law is effective immediately and is set to expire on June 15, 2020, but it could be extended through further legislation.

Background:

The DCFMLA requires employers with 20 or more employees to provide eligible employees with 16 weeks of unpaid family leave and 16 weeks of unpaid medical leave during a 24-month period. To be eligible, an employee must:

  • Have been employed by the employer for at least one year without a break in service; and
  • Worked at least 1,000 hours during the 12-month period immediately preceding the requested leave.

DCFMLA Expanded:

The Act amends the DCFMLA to add a new category of leave called declaration of emergency (DOE) leave. Unlike with the other types of DCFMLA leave, all employers with employees in the District of Columbia must provide DOE leave. Additionally, all employees who work in the District of Columbia are eligible for DOE leave, regardless of their length of service and number of hours worked during the 12-month period prior to the leave.

DOE Leave:

Employers must provide DOE leave to an employee who is unable to work because:

  • A public health emergency has been declared by the mayor and the Department of Health, any other District or federal agency, or a medical professional has recommended the employee self-quarantine or self-isolate; or
  • The government mandates that the employee be in quarantine or isolation.

The leave may be unpaid, but employees may be entitled to paid leave under the recently enacted federal Families First Coronavirus Response Act (FFCRA), once it takes effect. If they aren't eligible for paid leave under FFCRA, employees may be eligible for unemployment benefits (see below).

Eligibility for Unemployment Benefits Expanded:

The Act expands coverage for unemployment benefits to employees who have become partially or fully unemployed because of a public health emergency, including when:

  • They have been quarantined or isolated by the Department of Health or any other applicable district or federal agency;
  • They have self-quarantined or self-isolated in a manner consistent with the recommendations or guidance of the Department of Health, any other applicable district or federal agency, or a medical professional; or
  • Their employer ceased or reduced operations due to an order or guidance from the mayor or the Department of Health or a reduction in business revenue resulting from the circumstances giving rise to the public health emergency.

In such cases, any otherwise eligible employee may receive unemployment benefits regardless of whether the:

  • Employer has provided a definitive date for the employee's return to work; or
  • Employee has a reasonable expectation of continued employment with the current employer.

The Act indicates that benefits paid pursuant to this expansion won't be charged to the experience-rating accounts of employers, and there won't be a work-search requirement for affected employees.

Compliance Recommendations:

Employers with employees in the District of Columbia should ensure compliance with the DOE leave requirements and provide impacted employees information about expanded unemployment benefits. For details on the Act, go here. Keep in mind that the DCFMLA has existing notice and other requirements that may apply, barring further guidance or rules from the district. For details on the DCFMLA, go here.

Georgia

The Georgia Department of Labor (GDOL) has issued an emergency rule requiring employers to file partial unemployment claims online on behalf of their employees who are temporarily laid off or whose hours have been temporarily reduced because of a lack of work due to coronavirus 2019 (COVID-19).

Any employer found to be in violation of this rule will be required to reimburse the GDOL for the full amount of unemployment insurance benefits paid to the employee.

Compliance Recommendations:

Employers that temporarily lay off or temporarily reduce work hours due to COVID-19 should ensure that they file partial unemployment claims online on behalf of impacted employees. Instructions for doing so may be found here. Employers should also notify impacted employees that they don't have to file an unemployment insurance claim.

Louisiana

The Louisiana Workforce Commission (LWC) has adopted an emergency rule that expands the unemployment insurance (UI) notice requirements.

Background:

Under existing law, employers must post a notice about the availability of unemployment insurance benefits.

Emergency Rule:

The emergency rule adopts an additional requirement that employers notify each individual employee within 24 hours of separation that:

  • Employees that meet the requirements for eligibility may file a UI claim in the first week that employment ends or work hours are reduced;
  • A UI claim may be filed by phone or online;
  • The LWC's toll-free phone number is 1-866-783- 5567 and web address is www.louisianaworks.net/hire for filing a UI claim or for assistance with claims.
  • Employees must provide the LWC with their full name, social security number, and work authorization (if not a U.S. citizen or resident).

The notice must be provided to employees in writing either via flyer, letter, email, or text message.

Note: The LWC will post a sample notice on its website for employers to use.

Compliance Recommendations:

Employers with employees in Louisiana must ensure compliance with the emergency rule.

Michigan

Michigan Governor Gretchen Whitmer has issued an executive order that expands protections for certain workers impacted by the coronavirus of 2019 (COVID-19). The executive order is effective immediately and will continue until the end of the states of emergency and disaster.

Background:

The Michigan Paid Medical Leave Act requires employers with 50 or more employees to provide paid leave to employees for the following reasons:

  • The employee's or a family member's mental or physical illness, injury, or health condition;
  • The employee's or a family member's medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or preventive medical care;
  • For medical care, counseling, obtaining legal services, or participating in a civil or criminal proceeding when the employee or a family member is a victim of domestic violence or sexual assault; and
  • The closure of the employee's primary workplace or their child's school or place of care due to a public health emergency, or when a health care provider has determined that the employee's or a family member's presence in the community would jeopardize the health of others.

Executive Order 2020-36:

Guidelines:

The executive order recommends that all individuals who test positive for COVID-19 or who display one or more of the principal symptoms (fever, atypical cough, or atypical shortness of breath) should remain home until:

  • Three days have passed since their symptoms have resolved; and
  • Seven days have passed since their symptoms first appeared or since they were swabbed for the test that yielded the positive result.

With limited exceptions (such as, healthcare professionals), the order also recommends that those who have had close contact with an individual who tests positive for COVID-19 or with an individual who displays one or more of the principal symptoms of COVID-19 should remain home until either:

  • 14 days have passed since the last close contact with the sick or symptomatic individual; or
  • The symptomatic individual receives a negative COVID-19 test.

Employee Protections (applies to all employees):

The executive order addresses the following:

  • Prohibits employers from taking adverse action against an employee for staying home from work while following the guidelines described above. Note: An individual who returns to work prior to the periods specified in the guidelines isn't entitled to this protection.
  • Requires employers to treat an employee following the guidelines as if they were taking leave under the Paid Medical Leave Act, even if the employer has fewer than 50 employees.
  • To the extent that the employee has no paid leave, the leave may be unpaid.
  • The length of leave, whether paid or unpaid, must be extended for as long as the employee remains away from work under the guidelines.
  • Prohibits employers from taking adverse action against an employee for failing to comply with a requirement to document that the employee or the individual with whom the employee has had close contact has one or more of the principal symptoms of COVID-19.

Compliance Recommendations:

Employers with employees working in Michigan should review their policies and practices to ensure compliance with the executive order.

Note: On March 18, 2020, the United States enacted the Families First Coronavirus Response Act (FFCRA), which requires employers to provide paid leave to certain employees impacted by COVID-19. The law took effect on April 1, 2020. FFCRA leave is in addition to other leave provided under federal, state, or local law; an applicable collective bargaining agreement; or the employer's existing company policy.

New Jersey

New Jersey has enacted legislation (Senate Bill 2374) that amends the state's Family Leave Act (NJFLA) and the Temporary Disability Insurance (TDI) program. Senate Bill 2374 takes effect immediately and is retroactive to March 25, 2020.

Background:

In March 2020, New Jersey enacted SB 2304 to expand its earned sick leave, family leave act, and temporary disability insurance rules during a state of emergency in order to cover absences related to epidemics such as COVID-19.

Senate Bill 2374:

Senate Bill 2374 further expands on the NJFLA and TDI program as follows:

NJFLA Amendments:

Senate Bill 2374 amends the NJFLA to allow employees to use family leave in the event of a state of emergency or an order by the Governor or public health authorities that results in:

  • In-home care or treatment of a child whose school or place of care has been closed;
  • Mandatory quarantine because the presence in the community of a family member with known or suspected exposure would jeopardize the health of others; or
  • The recommendation of a health care provider or public health authority that a family member voluntarily undergo self-quarantine as a result of known or suspected exposure.

Certification:

The employer may request certification from the employee seeking leave for the above reasons, including:

  • The date and reason of closure (for their child's school or place of care closing)
  • Date and anticipated length of the order (for a family member's mandatory quarantine)
  • The date and probable length of recommended quarantine and medical or other facts that prompted the recommendation (for the family member's voluntary self-quarantine)

Intermittent Leave:

The amendments allow a covered employee to use NJFLA for the above reasons intermittently, provided the employee gives advance notice and attempts to schedule the intermittent leave in a way that does not disrupt normal business operations. Additionally, if possible, the employee should provide the employer with a regular schedule of the day or days of the week on which the intermittent leave will be taken.

TDI Amendments:

Senate Bill 2374 makes temporary disability and family temporary disability funds available to employees who take leave for pandemic-related reasons (covered above). The amendment also eliminates the seven-day waiting periods for benefits related to the above reasons.

Compliance Recommendations:

New Jersey employers should review their policies, forms, practices, and supervisor training to ensure compliance with Senate Bill 2374.

Updated: March 31, 2020

New Jersey has enacted legislation (SB 2304) to expand its earned sick leave, family leave act, and temporary disability insurance rules during a state of emergency.

Senate Bill 2304:

The expansions under Senate Bill 2304 are covered below.

Earned Sick Leave Law Expansion:

SB 2304 expands New Jersey's earned sick leave law to allow an employee to take leave due to an epidemic-related state of emergency declared by the Governor, a health official acting to contain a disease, or a determination by a health care provider, the Commissioner of Health or other public health authority that the employee's presence in the community, or the presence of an employee's family member in need of care, would "jeopardize the health of others."

Family Leave Act Expansion:

SB 2304 also amends the New Jersey Family Leave Act (NJFLA), which provides unpaid, job protected leave in the event an employee needs to care for a family member with a serious health condition (among other reasons for use). The NJFLA applies to employers with 30 or more employees and provides 12 weeks of unpaid, job-protected leave in a 24-month period.

SB 2304 expands the definition of "serious health condition" during a state of emergency to include an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of an employee's family member.

The amendments also restrict an employer's ability to exercise the highly compensated exception (which ordinarily allows leave to be denied to certain highly compensated individuals to prevent substantial economic injury to the company) and require job reinstatement rights to individuals who take such leave during an epidemic.

Temporary Disability Insurance (TDI) Expansion:

The definition of a serious health condition under New Jersey's Family Leave Insurance and TDI is also amended to be consistent with the amended definition under the NJFLA, covered above. Additionally, the one-week waiting period for TDI benefits is removed for illnesses caused by an epidemic.

Compliance Recommendations:

New Jersey employers should review their policies, forms, practices, and supervisor training to ensure compliance with SB 2304.

New Jersey has enacted legislation (Assembly Bill 3848) to prohibit employers from retaliating against an employee for taking time off due to illness during the COVID-19 outbreak.

Assembly Bill A3848:

During the COVID-19 outbreak, an employer may not terminate or otherwise penalize an employee if: the employee requests or takes time off from work based on the written or electronically transmitted recommendation of a medical professional to do so for a specific duration because the employee has, or is likely to have, an infectious disease, which may infect others at the employee's workplace.

At the conclusion of leave, an employer may not refuse to reinstate the employee to the position held when the leave began with the same seniority, status, employment benefits, pay or other terms and conditions of employment.

Enforcement:

Employers found in violation of the law must reinstate the employee to the position previously held and may be subject to a penalty of $2,500 for each violation.

Compliance Recommendations:

New Jersey employers should review their policies and procedures, and train supervisors to ensure compliance with Assembly Bill 3848.

New York

The state of New York has launched a loan program (New York Forward Loan Fund) to help small businesses that have been impacted by the COVID-19 pandemic.

The New York Forward Loan Fund will provide loans for working capital. The loans will have an interest rate of 3 percent and a term of five years, with monthly payments limited to interest during the first 12 months. The program has an initial funding of $100 million.

Loan Amount:

For small businesses, the maximum loan amount is the lesser of: (a) $100,000; or (b) up to 100% of average monthly revenues in a three-month period prior to the COVID-19 outbreak. The three-month period can be any three-month period from 2019 or January to March 2020.

Eligibility:

To be eligible for a loan under the program, a small business must meet the following requirements:

  • Employ 20 or fewer full-time equivalent (FTE) employees;
  • Have gross revenues of less than $3 million per year;
  • Did not receive a loan from either SBA Paycheck Protection Program (PPP) or SBA Economic Injury Disaster Loan (EIDL) for COVID-19 in 2020;
  • Suffered a direct economic hardship as a result of COVID-19 related social distancing policies and stay-at-home orders that have materially impacted their operations;
  • Been in business for at least one year as of the date of the loan application; and
  • Located in the state of New York.

The following businesses are ineligible for loans under the program:

  • Corporate-owned franchises;
  • Not-for-profit social clubs;
  • Branch banks;
  • Pay day loan stores;
  • Pawn shops;
  • Astrology, palm reading;
  • Liquor stores, night clubs;
  • Adult bookstores, massage parlors, strip clubs;
  • Track waging facilities;
  • Trailer-storage yards;
  • Marijuana dispensaries.

Applying for a Loan:

Small businesses must complete a pre-application and then a participating lender will contact the applicant to collect information and finalize the application review process. Pre-applications will be reviewed on a rolling basis as regions and industries are phased to reopen.

More Information:

More information on the New York Forward Loan Fund, including the pre-application, can be found here.

The New York State Department of Labor (NYSDOL) has adopted an emergency rule that requires employers to provide an unemployment insurance notice to employees whose work schedule and/or employment status is impacted by COVID-19.

The following information must be provided:

  • NYS Employer Registration Number
  • Federal Employer Identification Number
  • Employer Name
  • Employer Address

All relevant employees, including those who have already been impacted by COVID-19, must be promptly provided with this information. The NYSDOL recommends employers use Form IA 12.3 to help employees expedite the completion of their unemployment applications.

Compliance Recommendations:

Employers with employees in New York must ensure compliance with the new notification requirements.

The State of New York has enacted legislation (Senate Bill 8091) that provides paid leave to employees subject to a quarantine or isolation order as a result of COVID-19.

Employers Impacted by a Mandatory Quarantine or Isolation:

Employer Size

Employer Requirements

10 or fewer employees with a net income less than one million dollars*

Provide employees with job protection for the duration of the quarantine order and guarantee access to paid family leave and disability benefits (short-term disability) for the quarantine. The full cost of the employee's leave will be provided by New York State insurance programs, capped at coverage equal to annual salaries of $150,000.

11-99 employees, or employers with 10 or fewer employees and a net income greater than one million dollars*

Provide at least five days of paid sick leave and job protection for the duration of the quarantine order, and the rest of the required quarantine or isolation days will be provided by New York State insurance programs, capped at coverage equal to annual salaries of $150,000.

100 or More Employees

Provide employees with up to 14 days of paid sick leave and guarantee job protection for the duration of the quarantine order.

* Earned in the previous tax year.

Job Protections:

Employees who return to work after a protected leave must be restored to the same pay, position of employment, and other terms and conditions of employment they had before taking their leave.

Employee Exemptions:

Senate Bill 8091 does not apply to quarantined or isolated employees who have returned to the U.S. after traveling to a country categorized as a level two or three by the Centers for Disease Control and Prevention (CDC) for non-work related reasons. For this exception to apply, the employee must have been made aware of this exception and of the CDC's warning.

Note: These employees are still eligible to use other accrued leave provided to them by their employer, after which the employee must receive unpaid sick leave until the end of any required or preventative order of quarantine or isolation.

Compliance Recommendations:

Employers in New York should review their policies, forms, practices, and supervisor training to ensure compliance with Senate Bill 8091.

Oregon

Oregon has enacted a temporary rule that expands the Oregon Family Leave Act (OFLA) to cover certain situations that may arise as a result of COVID-19. The rule is in effect from March 18, 2020 through at least September 13, 2020.

Background:

The OFLA requires employers with 25 or more employees to provide eligible workers with unpaid, job protected leave to care for themselves or family members in certain circumstances. Generally, to be eligible for leave, an employee must be employed for the 180 day calendar period immediately preceding the leave and have worked at least an average of 25 hours per week during the 180-day period, though there are some exceptions.

Under existing rules, OFLA permits eligible employees to use up to 12 weeks of sick-child leave to care for a child with a non-serious health condition who requires home care and certain other reasons.

Temporary Rule:

The temporary rule permits eligible employees to also use sick-child leave to care for a child whose school or place of care has been closed in conjunction with a statewide public health emergency declared by a public health official.

Compliance Recommendations:

Employers in Oregon should review their policies, forms, practices, and supervisor training to ensure compliance with the temporary rule.

Pennsylvania

Pennsylvania has enacted legislation (House Bill 68) that eases unemployment eligibility rules and requires employers to provide employees with an unemployment notice. House Bill 68 takes effect immediately.

Unemployment eligibility:

House Bill 68 eases unemployment compensation eligibility requirements for employees who become unemployed due to COVID-19.

Waiting periods:

House Bill 68 waives the one-week waiting period and requirement for employees to actively look for work for the duration of the COVID-19 emergency declared by the Governor. Employees must still meet certain other conditions in order to qualify.

Employer Assistance:

Where permitted by federal law, an employer's unemployment account will not be charged if employees are filing unemployment claims for certain reasons related to COVID-19.

Unemployment notice:

When an employee separates from an employer, the employer must provide the employee with a notice containing the following information:

  • Employees may be eligible for unemployment payments;
  • That information on filing unemployment claims may be found on the state's website or by calling the Department: (888) 313-7284;
  • Employees will need to provide information such as their full legal name, social security number, and work authorization (if not a U.S. citizen or resident); and
  • Employees may file unemployment claims during the first week that their employment ends, or their hours are reduced.

Note: The employer notice requirement will be required beyond the COVID-19 outbreak.

Compliance Recommendations:

Pennsylvania employers should review and adjust their policies and procedures to ensure compliance with House Bill 68.

Due to the COVID-19 outbreak, the City of Philadelphia expanded its paid sick leave ordinance and postponed its predictive scheduling law.

Background:

The Promoting Healthy Families and Workplace Act (Act) requires employers to provide paid sick leave to employees who work in Philadelphia at least 40 hours in a year. Under the Act, an employee accrues one hour of sick leave per 40 hours worked, which includes any overtime. Exempt administrative, executive or professional employees accrue sick leave based on their normal workweek or a 40-hour workweek, whichever is less.

Employees are permitted to use 40 hours of paid sick time for:

  • An existing health condition requiring diagnosis, care, or treatment;
  • Preventative care; or
  • Issues related to an employee being a victim of domestic violence, sexual assault, or stalking.

COVID-19 Expansion:

The Promoting Healthy Families and Workplace Act has been expanded to cover absences related to COVID-19. This includes business closures, quarantines, and the need to stay home with children during school closures.

Fair Workweek Ordinance:

The City of Philadelphia also postponed its Fair Workweek Ordinance. Under the Ordinance, if an employee did not consent to a schedule change and a work schedule was altered within ten days of the schedule's delivery, the employer would be required to:

  • Pay employees one hour of predictability pay if hours are added to a schedule, or if a schedule is changed with no loss in hours; or
  • Pay employees predictability pay at a rate of time and a half for all hours not worked if the scheduled hours are reduced.

The Ordinance is postponed until further notice from the City.

Compliance Recommendations:

Philadelphia employers should review their policies, forms, practices, and supervisor training to ensure compliance with the paid sick leave expansion.

San Jose, CA

The city of San Jose (CA) has adopted an emergency ordinance that will require employers to provide paid sick leave to employees if they are exempt from the leave requirements under the federal Families First Coronavirus Response Act (FFCRA). The ordinance is in effect from April 7, 2020 through December 31, 2020.

Background:

Effective April 1, 2020, the FFCRA requires certain employers to provide paid leave to employees who are impacted by COVID-19. The law requires two types of paid leave: Emergency Paid Sick Leave and Public Health Emergency Leave (PHEL)/Expanded FMLA. The FFCRA only applies to employers with fewer than 500 employees.

Exemptions:

Under the law, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the application of paid leave. Employers with fewer than 50 employees may also be exempt from the law's requirements to provide paid leave to an employee who is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19. The exemption would be available only if that requirement would jeopardize the viability of the business.

For details on how to claim the small employer exemption, see DOL Issues Rule Implementing Paid Leave Law in the federal section above.

San Jose Emergency Ordinance:

The city's emergency ordinance is meant to address the gaps in the FFCRA's leave requirements.

Covered Employers:

The ordinance covers employers who are exempt, either in whole or in part, from the FFCRA's leave provisions.

Covered Employees:

To be eligible for the leave, the employee must work at least two hours within the geographic boundaries of the city for a covered employer.

Employers covered by the ordinance must provide paid sick leave to each employee who leaves their residence to perform "essential work." The ordinance defines essential work as work activities and services for which an employee may leave their residence to perform under the order issued by the Santa Clara County Public Health Officer on March 16, 2020.

Note: The ordinance doesn't require employers to provide paid sick leave to employees who can work from home.

Amount of Leave:

Under the ordinance, a full-time employee is entitled to 80 hours of paid sick leave. A part-time employee is entitled to sick leave hours equal to the number of hours they work on average over a two-week period.

Use:

An employee may use paid sick leave for any of the following purposes:

  • The employee is subject to quarantine or isolation by federal, state or local order due to COVID-19, or is caring for someone who is quarantined or isolated due to COVID-19;
  • The employee is advised by a healthcare provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a healthcare provider;
  • The employee experiences symptoms of COVID-19 and is seeking medical diagnosis; or
  • The employee is caring for a minor child because a school or daycare is closed due to COVID-19.

Pay During Leave:

During the leave, the employee is entitled to be paid their regular rate of pay, up to $511 per day (and a total of $5,110). However, leave to care for an individual on quarantine/isolation/self-quarantine or to care for a child whose school or daycare is closed may be compensated at 2/3 of the employee's regular rate of pay, up to a maximum of $200 per day (and a total of $2,000).

Exceptions:

The ordinance doesn't apply to any employer who:

  • Provides its employees, on the effective date of the ordinance, with some combination of paid personal leave at least equivalent to the paid sick leave required by the ordinance; or
  • Operates a hospital if such employer provides its employees, within two weeks of the effective date of the ordinance, with some combination of paid personal leave at least equivalent to the paid sick leave required by the ordinance.

Compliance Recommendations:

San Jose employers who are fully or partially exempt from the FFCRA's leave requirements must ensure compliance with the city's ordinance.

Seattle, WA

Effective immediately, Seattle has expanded the reasons employees may take leave under its Paid Sick and Safe Time (PSST) Ordinance.

Background:

Under Seattle's paid sick leave ordinance, an employee may take leave to care for themselves or a family member due to:

  • A physical or mental health condition, including a doctor's appointment;
  • Domestic violence, sexual assault or stalking;
  • Their child's place of care or school was closed due to the order of a public health official for a health-related reason; or
  • When a public official ordered their place of business to close.

Amendments:

The City Council amended the ordinance to allow employees to take leave when any family member's (not just their child's) school or place of care has been closed for any reason. For employers with 250 or more full-time equivalent employees, employees can also take leave when their place of business has been closed for any health or safety reason.

Compliance Recommendations:

Seattle employers should review their policies, forms, practices, and supervisor training to ensure compliance with the Ordinance as amended.