COVID-19 Small Business Resource Center

Federal

The Treasury Department and Small Business Administration (SBA) have released a simplified Payroll Protection Program (PPP) forgiveness application (Form 3508S) and instructions for PPP loans of $50,000 or less.

The SBA adopted a de minimis exemption from reductions in loan forgiveness (i.e., penalties) for failure to maintain the number of full-time-equivalent employees (FTEs), as well as wage level maintenance requirements, for PPP loans of $50,000 or less.

Borrowers with affiliates that collectively received PPP loans of $2 million or more cannot use the new form or new exemptions.

Background:

The PPP was enacted as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act to provide employers with funds to continue operations and payment of wages during the COVID-19 pandemic. These loans can be fully forgiven if certain conditions are met, including at least 60 percent of the loan being used to cover payroll expenses. Borrowers must also maintain specific staffing and pay levels.

Forgiveness Reduction Waived for Smaller Loans:

The interim final rule issued by the SBA says that qualifying PPP borrowers won't need to document compliance with the targeted staffing and wage-level maintenance requirements. Loan forgiveness amounts won't be reduced, even if employee counts or wage levels decreased during or after the covered period, as long as the loan was $50,000 or less, and the borrower, when combined with any affiliates, collectively received less than $2 million.

Future Legislation Possible:

There are several legislative proposals in Congress to further expand, simplify and extend the PPP program, including proposals that could authorize a second PPP loan for qualifying businesses. ADP will continue to closely monitor federal legislation and guidance affecting PPP loans.

Compliance Recommendations:

Many borrowers may be ready to submit their forgiveness applications (SBA Form 3508, 3508EZ or 3508S). The SBA began approving PPP forgiveness applications and remitting forgiveness payments to PPP lenders for PPP borrowers on October 2, 2020. Borrowers should check with their lenders directly to determine if they are prepared to accept forgiveness applications. For FAQs from the SBA, click here.

The Department of Labor has amended regulations for the Families First Coronavirus Response Act (FFCRA) after a federal court struck down parts of previous regulations. The amended regulations take effect September 16, 2020.

Background:

The FFCRA requires employers with fewer than 500 employees to provide paid leave to employees who are unable to work or telework because of certain COVID-related reasons. The law requires two types of paid leave: Emergency Paid Sick Leave and Public Health Emergency Leave. Under the law, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the leave requirements. The law went into effect on April 1, 2020 and expires on December 31, 2020.

On April 1, 2020, the Department of Labor (DOL) issued regulations that defined key terms and made important clarifications to the law, including the following:

  • Work-Availability Requirement: Entitled employees to FFCRA leave only if there was work available to them. For instance, if the employer sends employees home and stops paying them because of a lack of work, the employee wouldn't be eligible for FFCRA leave under the regulations.
  • Definition of Healthcare Provider: Defined healthcare provider as 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.
  • Intermittent Leave: Allowed employees to take leave intermittently for certain qualifying reasons but only if the employer agrees to it.
  • Documentation: Required that prior to taking FFCRA leave, employees must submit certain documentation to the employer.

Shortly after the regulations were issued, the attorney general for the state of New York filed a lawsuit challenging each of the four provisions above, arguing that they unduly restrict FFCRA leave.

District Court Ruling:

On August 3, 2020, a federal district court judge in New York struck down a number of the regulations' components. First, it found that the explanation provided for the work-availability requirement is insufficient. The judge also struck down the regulations' definition of healthcare provider as overly broad because it hinges entirely on the identity of the employer and includes employees whose roles have no connection with providing healthcare services. For instance, an English professor, librarian, or cafeteria manager at a university with a medical school could all be considered "healthcare providers" under the definition.

The judge ruled that the DOL was within its authority to limit intermittent leave to certain qualifying reasons. However, the judge struck down the part of the provision that required employer consent for employees to take the leave intermittently.

The judge also struck down the requirement that documentation be provided prior to the employee taking the leave.

Amended Regulations:

In response to the judge's ruling, the DOL has issued amended regulations.

Work-Availability Requirement:

The amended regulations reaffirm that FFCRA leave may be taken only if the employee has work available to them. The DOL also clarifies that this requirement applies to all qualifying reasons to take FFCRA leave.

Definition of Healthcare Provider:

The amended regulations revise the definition of "healthcare provider" to mean employees who are healthcare providers under the Family and Medical Leave Act and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. This group includes employees who provide direct diagnostic, preventive, treatment, or other patient care services, such as nurses, nurse assistants, and medical technicians, according to the DOL. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services. Finally, employees who don't provide direct healthcare services to a patient but are otherwise integrated into and necessary to the provision of those services—for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition—are healthcare providers, according to the DOL.

An individual isn't a healthcare provider merely because their employer provides healthcare services or because the individual provides a service that affects the provision of healthcare services. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers aren't healthcare providers, even if they work at a hospital of a similar healthcare facility.

To minimize the spread of the virus associated with COVID-19, the DOL encourages employers to be judicious when using this definition to exempt healthcare providers from the provisions of the FFCRA. For example, an employer may decide to exempt these employees from leave for caring for a family member but choose to provide them paid sick leave in the case of their own COVID-19 illness.

Intermittent Leave:

The amended regulations reaffirm that, where intermittent FFCRA leave is permitted by the regulations, an employee must obtain their employer's approval to take FFCRA leave.

However, in the preamble to the amended regulations, the DOL clarifies that the employer-approval condition wouldn't apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave wouldn't be intermittent. For instance, the employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.

Documentation:

The amended regulations clarify that the information the employee must give to support the need for leave should be provided to the employer as soon as practical and need not be provided prior to taking FFCRA leave.

Updated FAQs:

The DOL also updated its FAQs to address the district court ruling (see questions 101-103, here) and the amended regulations (see questions 16, 21, 22, 56, 98, and 99, here). In the updated FAQs, the DOL says it interpreted the ruling to mean that the four FFCRA provisions in question were vacated nationwide on August 3, 2020. This may cause some confusion among employers, including raising questions about what rules apply prior to September 16.

Compliance Recommendations:

Employers should review the amended regulations in full and consider the impact on their policies and practices. Employers may also want to consult legal counsel about decisions that were made based on previous DOL regulations/interpretations. Since the amended regulations could also be challenged, monitor the situation closely for developments.

The Department of Homeland Security (DHS) has adopted a temporary policy in response to delays in the government's production of certain Employment Authorization Documents (Form I-766, EAD) for the purposes of completing Form I-9.

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. To complete Section 2 of the I-9, employees must generally present 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

DHS Temporary Policy:

In response to delays in producing certain EADs, the DHS is allowing employees to temporarily use Form I-797 (Notice of Action) as a List C document. To be accepted under the temporary policy, Form I-797 must be dated on or after December 1, 2019 through August 20, 2020 and inform the applicant that their Application for Employment Authorization (AEA) is approved, even though the notice states it isn't evidence of employment authorization. Employees may present Form I-797 as a List C document until December 1, 2020. For Form I-9 completion, employees who present a Form I-797 for new employment must also present their employer with an acceptable List B document that establishes identity.

By December 1, 2020, employers must reverify employees who presented Form I-797. These employees will need to present new evidence of employment authorization from either List A or List C. Note that it's the employees' choice whether to present their new EADs, or a different document from either List A or List C.

Compliance Recommendations:

Employers should review their I-9 procedures and training to ensure compliance with the temporary policy.

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: August 21, 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). These procedural changes have been extended until November 19, 2020.

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 until November 19, 2020.

Compliance Recommendations:

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

Updated: September 15, 2020

Update: On September 11, 2020, the Department of Labor issued amended regulations. Among other things, the amendments change the definition of healthcare provider and the timing for the documentation requirements. For more information on the revised regulations, go here.

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 (as amended by regulations effective September 16, 2020). Employees who are healthcare providers under the Family and Medical Leave Act and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. This group includes employees who provide direct diagnostic, preventive, treatment, or other patient care services, such as nurses, nurse assistants, and medical technicians, according to the DOL. It also includes employees who directly assist or are supervised by a direct provider of diagnostic, preventive, treatment, or other patient care services. Finally, employees who don't provide direct healthcare services to a patient but are otherwise integrated into and necessary to the provision of those services—for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition—are healthcare providers, according to the DOL.

    An individual isn't a healthcare provider merely because their employer provides healthcare services or because the individual provides a service that affects the provision of healthcare services. For example, IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers aren't healthcare providers, even if they work at a hospital of a similar healthcare facility.

    To minimize the spread of the virus associated with COVID-19, the DOL encourages employers to be judicious when using this definition to exempt healthcare providers from the provisions of the FFCRA. For example, an employer may decide to exempt these employees from leave for caring for a family member but choose to provide them paid sick leave in the case of their own COVID-19 illness.

  • 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:

As soon as practicable, 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.

Alabama

The Alabama Department of Labor has adopted an emergency rule that expands the state's unemployment insurance notice requirements. The rule takes effect immediately.

Background:

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

Emergency Rule:

Under the emergency rule, employers must also provide a notice at the time of separation about the potential availability of unemployment benefits. Employers may provide the notice by letter, email, text message, or flyer. The notice must include the following information:

Notice of Availability of Unemployment Compensation

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

For assistance or more information about filing a claim, visit www.labor.alabama.gov

You will need to provide the Alabama Department of Labor's UI divisions with the following information in order for the state to process your claim:

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

To file a UI claim by phone, call: 1-866-234-5387.

To file a UI claim online, visit:

https://continuedclaims.labor.alabama.gov

If you have questions about the status of your UI claim, you can call the Alabama Department of Labor at 1-800-361-4524 or check your claim status online at:

https://uiclaimstracker.labor.alabama.gov

Compliance Recommendations:

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

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.

California

California has enacted legislation (Assembly Bill 685) that requires employers to provide written notice to employees who may have been exposed to COVID-19 at their worksite. Assembly Bill 685 takes effect January 1, 2021. The state also enacted Senate Bill 1159, which takes effect immediately and adds workers' compensation protections related to COVID-19.

Assembly Bill 685:

If an employer is put on notice of potential exposure to COVID-19, the employer must take all the following actions within one business day:

  • Notify employees of possible exposure. Provide a written notice to all employees and their exclusive representative (if any), and the employers of subcontracted employees who were on the premises at the same worksite as the individual within the infectious period. The notice must be provided in a manner the employer normally uses to communicate employment-related information and may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and must be in both English and the language understood by the majority of the employees.
  • Provide benefits-related information. Provide information about COVID-19-related benefits to all employees who may have been exposed and to the exclusive representative, if any. This includes, but isn't limited to, workers' compensation, COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections.
  • Communicate safety plan. Notify all employees, and the employers of subcontracted employees and the exclusive representative, if any, on the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.
  • Notify public health agency. If an employer or representative of the employer is notified of the number of cases that meet the definition of a COVID-19 outbreak, as defined by the State Department of Public Health, within 48 hours, the employer must notify the local public health agency in the jurisdiction of the worksite of the: names, number, occupation, and worksite of the employees and the business address and NAICS code of the worksite where the individuals work.

Employers must maintain records of the required notifications for a period of at least three years.

Other Protections:

Employers are prohibited from requiring employees to disclose medical information unless otherwise required by law. Employers are also barred from retaliating against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate.

The law also gives Cal/OSHA additional enforcement powers if it determines that the worksite exposes workers to the risk of infection and constitutes an imminent hazard to employees.

Senate Bill 1159:

Effective immediately, Senate Bill 1159:

  • Codifies a recent executive order (N-62-20) to create a rebuttable presumption that illness or death related to COVID-19 is an occupational injury and therefore eligible for workers' compensation benefits (this presumption applies to employees who performed services at their place of employment at the employer's direction on or after March 19, 2020, and on or before July 5, 2020).
  • Creates a rebuttable presumption that a peace officer, firefighter, specified frontline employees, and certain healthcare employees, who contract COVID-19 were infected with the virus via a workplace exposure. This presumption applies from July 6, 2020 and expires on January 1, 2023.
  • Establishes a presumption of compensability for employees who contract COVID-19 on or after July 6, 2020 from any employer with five or more employees that experiences an "outbreak" of COVID-19 cases at a particular work location (this presumption expires on January 1, 2023). Notably, the definition of outbreak is different under Senate Bill 1159 than the one under Assembly Bill 685. See the text of the law for details.

Notification to Claims Administrator:

When the employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report to their claims administrator in writing within three business days all of the following:

  • An employee has tested positive. For purposes of this reporting, the employer is prohibited from providing any personally identifiable information regarding the employee who tested positive for COVID-19 unless the employee asserts the infection is work related or has filed a claim form.
  • Date of positive result. The date that the employee tests positive, which is the date the specimen was collected for testing.
  • Work address. The specific address (or addresses) of the employee's specific place of employment during the 14-day period preceding the date of the employee's positive test.
  • Workforce count. The highest number of employees who reported to work at the employee's specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.

Any employer who is aware of an employee testing positive from July 6, 2020 to September 17, 2020 must also notify their claims administrator within 30 business days of September 17, 2020. See the text of the law for details on this reporting requirement.

Compliance Recommendations:

California employers should review their procedures to ensure compliance with the notice requirements of these two laws.

Updated: September 23, 2020

California has enacted legislation (Assembly Bill 1867) that extends COVID-19 supplemental paid sick leave to more employees in the state. Assembly Bill 1867 takes effect no later than 10 days after September 9, 2020. The law expires on December 31, 2020, or upon the expiration of any extension of the federal Families First Coronavirus Response Act (Public Law 116-127), whichever is later.

Background:

The federal Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees to provide emergency paid sick leave to employees who are unable to work (or telework) because of certain reasons related to COVID-19. Under the federal law, employers of healthcare providers and emergency responders may exclude these employees from emergency paid sick leave. The FFCRA is in effect from April 1, 2020 to December 31, 2020, unless extended.

In April, Governor Gavin Newsom signed Executive Order N-51-20 entitling food-sector workers to COVID-19 supplemental paid sick leave (SPSL), provided they work for an entity with 500 or more employees nationwide.

Assembly Bill 1867:

Among other things, Assembly Bill 1867 codifies the COVID-19 SPSL requirements for food-sector workers and extends the requirements to additional workers.

Expanded Coverage:

Assembly Bill 1867 extends the COVID-19 SPSL entitlement to all individuals who are:

  • Employed by a hiring entity with 500 or more employees in the United States; or
  • Employed as a health care provider or emergency responder by a hiring entity that has elected to exclude such employees from the FFCRA's emergency paid sick leave requirements.

Amount of COVID-19 SPSL:

Under Assembly Bill 1867, covered workers are entitled to up to 80 hours of COVID-19 SPSL if they're either considered full time or worked or were scheduled to work on average at least 40 hours per week in the two weeks preceding the date of leave.

Part-time employees are generally entitled to the total number of hours they're normally scheduled to work over two weeks. There are special rules for part-time employees who work variable schedules and for firefighters. See the text of the law for details.

Use of COVID-19 SPSL:

Covered workers may use COVID-19 SPSL for when they're:

  • Subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  • Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
  • Prohibited from working by the covered worker's hiring entity due to health concerns related to the potential transmission of COVID-19.

Employers must make leave available to covered workers for immediate use upon an oral or written request.

Pay During Leave:

Each hour of COVID-19 SPSL must be compensated at a rate equal to or greater than the highest of the:

  • Worker's regular rate of pay for the last pay period;
  • State minimum wage; or
  • Local minimum wage to which the covered worker is entitled.

However, each worker's COVID-19 SPSL is subject to a cap of $511 per day and $5,110 total.

Notice:

Employers are required to post a notice regarding COVID-19 SPSL. A model notice for covered food sector employers is available here and other covered employers here. For workers who don't frequent a workplace, an employer may satisfy this requirement by disseminating the notice electronically, such as by e-mail.

Employers must also provide employees with information on the amount of COVID-19 SPSL they have available on either itemized wage statements or a separate notice provided each payday. This requirement won't be enforced until the next full pay period following enactment.

Interplay with Other Leave:

COVID-19 SPSL is in addition to any paid sick leave that the covered employee receives under Labor Code Section 246. Employers are prohibited from requiring an employee to use any other paid or unpaid leave in place of COVID-19 SPSL.

If an employer already provides a covered worker with paid leave that is payable for the reasons listed above and that would compensate the covered worker in an amount equal to or greater than the amount required for COVID-19 SPSL, the employer may count those hours toward the total number of hours of COVID-19 SPSL. Under this provision, the other paid leave may not include paid sick leave to which the employee is entitled under Labor Code Section 246.

Compliance Recommendations:

Employers with employees covered by the COVID-19 SPSL requirements should ensure compliance.

Chicago, IL

Chicago has published final rules, frequently asked questions, and a notice for employers covered by the city's Fair Workweek Ordinance, which takes effect July 1, 2020.

Background:

In 2019, Chicago enacted an ordinance requiring certain employers to notify employees of their schedules in advance and pay employees when they provide insufficient notice of schedule changes.

To be covered by the ordinance:

  • The employer must employ 100 or more employees globally (250 or more employees for not-for-profit corporations);
  • At least 50 of those employees must be considered covered employees (see below); and
  • The employer must be primarily engaged in one of the following covered industries:
    • Building Services;
    • Healthcare;
    • Hotels;
    • Manufacturing;
    • Restaurants;
    • Retail; or
    • Warehouse Services.

Under the ordinance, a covered employee is one who:

  • Performs work in the capacity of an employee, as distinguished from a contractor, or is a worker for temporary agency who has been on assignment to the employer for 420 hours within an 18-month period;
  • Spends most of their work time within the City of Chicago;
  • Performs most of their work in a covered industry for that employer; and
  • Earns $50,000 or less per year as a salaried employee, or $26.00 or less per hour as an hourly employee (these amounts will be adjusted for inflation).

The ordinance contains various provisions, including:

  • Posting Work Schedule: Employers must post covered employees' work schedules no later than 10 days before the first day of any new schedule. This deadline increases to 14 days beginning July 1, 2022. The schedule must include the shifts and on-call status of all current covered employees at that worksite. Additionally, it must be posted conspicuously within the workplace and readily accessible and visible to all covered employees or via the usual methods of communication. Additionally, upon written request, the employer must transmit the schedule electronically.
  • Right to decline unscheduled hours: Covered employees can decline to work unscheduled hours offered to them within 10 days of the beginning of the work schedule in which those additional hours are proposed.
  • Predictability pay: Covered employees receive one hour of additional pay when hours are added to a shift, or a shift's time or date is changed with no change to the number of hours, within 10 days of the beginning of the work schedule during which that shift takes place. Predictability pay also applies when hours are subtracted from a shift within 10 days of the start of the work schedule in which that shift takes place, but with more than 24 hours' notice from the beginning of that shift.
  • Pay for cancelled hours and shifts: Covered employees receive no less than 50% of their pay for any hours that are cancelled with less than 24 hours' notice from the beginning of the shift during which those cancelled hours were to take place.
  • Right to rest: Covered employees can decline shifts that begin less than 10 hours following the end of the previous day's shift. When covered employees agree to work such a shift, they are then paid at 1.25 time their base rate of pay.
  • Initial estimate of work schedule: Covered employees must receive an initial good faith estimate of their work schedule, including the days of the week they can be expected to work, and the start and end times of their shifts for those days.
  • Employer notice: Employers must post a notice advising covered employees of their rights under the ordinance. Employers must also provide a notice with each covered employee's first paycheck on or after July 1, 2020.

More information on the ordinance can be found here.

Final Rules, FAQs, and Notice:

The city recently published final rules, frequently asked questions, and the required notices under the ordinance.

Among other things, the final rules clarify that:

  • An employer may change a previously scheduled regular shift as posted by 15 minutes or less without being obligated to provide predictability pay.
  • Employers may add a covered employee to a work schedule with less than the required notice when they are returning from a leave of absence.
  • Employers must post the required notice through the employers' usual methods of communication for such notices, whether by paper posting or by electronic dissemination through the employers' 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 notice that employers must provide with the first paycheck advising the covered employee of their rights must be printed on and scaled to fit a sheet of paper that measures 8.5 inches by 11 inches. However, where covered employees are enrolled in direct deposit, employers may provide the notice through the employers' usual methods of electronic communication. This notice must also be provided with employee paychecks annually on or following July 1.
  • All notices must be posted in English and any language(s) spoken by employees at the facility who are not proficient in English and in which city has provided non-English language notices. As of June 9, 2020, the city has published the notices in English and Spanish.

The frequently asked questions address various issues, including COVID-19.  In the answer to one question, the city states that if COVID-19 causes a material change to an employer's operations that creates the need for a schedule change, the employer is exempt from certain provisions of the ordinance (right to decline, predictability pay, and pay for cancelled hours and shifts) for the work schedule during which the change takes place, as well as the following work schedule.

Compliance Recommendations:

Covered employers should read the ordinance, final rules, and frequently asked questions in full and ensure compliance by July 1, 2020. Anyone involved in scheduling employees should be trained as well.

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.

Cities in California

San Francisco has approved an emergency ordinance that temporarily creates reemployment and other rights for certain employees laid off due to the COVID-19 pandemic. The ordinance went into effect on July 3, 2020 and expires September 1, 2020.

Coverage:

The emergency ordinance covers employers with 100 or more employees (as of the earliest date that the employer separated one or more employees that resulted in a layoff). However, employers that provide services that qualify as healthcare operations are exempt from the ordinance.

To be covered by the ordinance, the worker must: (1) be employed by their employer for at least 90 days of the calendar year preceding the date on which their employer provided written notice of layoff; and (2) be separated due to a layoff.

For the purposes of the ordinance, a layoff is defined as separation of 10 or more employees during any 30-day period, commencing on or after February 25, 2020, and which is caused by the employer's lack of funds or lack of work for its employees, resulting from the Public Health Emergency and any shelter-in-place orders. This definition includes any layoff conducted in conjunction with the closure or cessation of an employer's business operations in the city.

Layoff Notice and Recordkeeping:

When an employer implements a layoff after the beginning of the Public Health Emergency, the employer must provide all covered workers with written notice on or before the date of the layoff. The employer must provide the notice in a language understood by the employee. Employers must also notify the Office of Economic and Workforce Development (OEWD). See the ordinance for details.

The written notice to affected employees must include:

  • A notice of the layoff and the effective date;
  • A summary of the right to reemployment created by the emergency ordinance (see below); and
  • A telephone number for the OEWD for the worker to receive information regarding the right to reemployment, as well as other City resources related to unemployment.

Note: The notice must also be provided to employees who were laid off prior to July 3, 2020. The notice must be provided to these individuals within 30 days of July 3, 2020.

Employers that initiate a layoff after the beginning of the Public Health Emergency must keep the following records for each covered worker for at least two years:

  • Full legal name;
  • Job classification at the time of separation;
  • Hire date;
  • Last known address, email address, and telephone numbers; and
  • A copy of the written notice of layoff.

Offer of Reemployment Following Layoff:

Where an employer has initiated a layoff after the beginning of the Public Health Emergency and subsequently seeks to hire a person to a position formerly held by a covered worker, the employer must first offer the position to the covered worker.

Where an employer has initiated a layoff after the beginning of the Public Health Emergency and subsequently seeks to hire a person to any position that is substantially similar to the covered worker's former position and the position is also located in the city, the employer must first offer the position to the covered worker. For the purpose of this provision, a "substantially similar position" includes:

  • A position with comparable job duties, pay, benefits, and working conditions to the worker's position at the time of layoff;
  • Any position in which the covered individual worked for the employer in the 12 months preceding the layoff; or
  • Any position for which the covered worker would be qualified, including a position that would necessitate training that an employer would otherwise make available to a new employee for the particular position upon hire.

In the event an employer separated more than one covered worker from the same job classification, the employer must make offers of reemployment based on the workers' seniority.

The emergency ordinance has specific rules for how the offer of reemployment must be delivered and steps for workers to follow to accept the offer. See the ordinance for details.

Exceptions:

An employer may withhold an offer of reemployment under the following circumstances:

  • Misconduct. If, based on information obtained subsequent to the layoff of a covered worker, the employer learns that they engaged in any act of dishonesty, violation of law, violation of policy or rule of the employer or other misconduct during their employment with the employer.
  • Severance Agreement. If: (1) the employer separated a covered worker between the beginning of the Public Health Emergency and July 3 as part of a layoff; and (2) the employer and the worker executed a severance agreement prior to July 3.
  • Rehiring. If: (1) the employer separated the worker between the beginning of the Public Health Emergency and July 3 as part of a layoff; and (2) prior to July 3, the employer hired another person to the position or the substantially similar position.

Reasonable Accommodations for Family Care Hardship:

Employers are prohibited from discriminating against or taking adverse action against a covered worker because they are experiencing a family care hardship. Covered workers are also entitled to reasonable accommodation if a family care hardship impacts their ability to perform a job duty or to satisfy a job requirement. In response to a request for accommodation, the employer must make good-faith efforts to reasonably accommodate the individual. For the purpose of this provision, reasonably accommodate includes, but isn't limited to, modifying the worker's schedule, modifying the number of hours worked, or permitting telework, to the extent operationally feasible.

Under the ordinance, a family care hardship is when a covered worker is unable to work due to either:

  • A need to care for their child whose school or place of care has been closed, or whose childcare provider is unavailable, as a result of the Public Health Emergency, and no other suitable person is available to care for the child during the period of such leave; or
  • Any grounds stated in the San Francisco Paid Sick Leave Ordinance for which a person may use paid sick leave to provide care for someone other than themselves.

Compliance Recommendations:

Covered employers should read the ordinance in full and ensure compliance.

Oakland is one of several California cities that have expanded the requirements for providing emergency paid sick leave. Oakland's ordinance went into effect on May 12, 2020 and expires on December 31, 2020.

Coverage:

The city's ordinance applies to all employers with 50 or more employees between February 3, 2020 and March 4, 2020. It also applies to unregistered janitorial employers of any size, and franchises with fewer than 50 employees associated with a franchisor or network of franchises employing more than 500 employees in total.

Employers that allow employees to accrue at least 160 hours of paid leave hours (such as personal, sick, vacation) and allow employees immediate access to at least 80 hours of paid leave after May 12, 2020 for the uses allowed under the ordinance are exempt from the requirement to provide emergency paid sick leave, but are subject to the remainder of the ordinance.

Amount of Leave:

Each current employee who worked at least 40 hours per week within the city between February 3, 2020 and March 4, 2020, or at any point thereafter, or is classified as full-time, must be provided with 80 hours of emergency paid sick leave. Other employees must be provided with leave equal to the average number of hours the employee worked in the city over the 14 days with the highest number of hours worked from February 3, 2020 and March 4, 2020.

An employer may credit the total sick leave hours provided under the federal Families First Coronavirus Response Act (FFCRA) against their obligations under the ordinance.

Use:

Employees may use leave under the ordinance for the same reasons allowed under the FFCRA plus the following reasons:

  1. When the employee needs to care for a family member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19; or
  2. When the employee:
    1. Is at least 65 years old;
    2. Has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
    3. Has any condition identified by an Alameda County, California or federal public health official as putting the public at heightened risk of serious illness or death if exposed to COVID-19; or
    4. Has any condition certified by a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19.

Pay During Leave:

Employers must pay 100 percent of the employee's normal hourly rate, up to a limit of $511 per day or $5,110 in total.

Documentation:

An employer may take reasonable measures to verify or document that an employee's use of the leave is lawful and may not require an employee to incur expenses in excess of $5 to demonstrate their eligibility for the leave.

Employers are expressly prohibited from requiring a doctor's note or other documentation for the use of the leave, except when an employee needs leave for "any condition certified by a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19." An employee obtaining such certification does not need to disclose their condition, only that they are at a heightened risk. The certification may be obtained by virtual or telephonic appointment.

Employer Notice:

The ordinance requires employers to post and/or provide a notice to their employees within three days after the city publishes it. The notice is translated into Spanish, Mandarin, Cantonese, and Vietnamese, and employers must provide the notice in all languages spoken by more than ten percent of employees.

Compliance Recommendations:

Oakland employers should read the ordinance in full and ensure compliance.

The city of Sacramento California has adopted an ordinance that provides certain protections to workers regarding COVID-19. The ordinance went into effect on July 15, 2020 and expires on December 31, 2020.

Coverage:

The ordinance generally covers:

  • All employees who work within the boundaries of the city.
  • All employers that operate a business in the city and that directly or indirectly employ or exercise control over the wages, hours, or working conditions of any employee.

Safety Protocols:

Employers must implement the following protocols and practices:

  • Daily cleaning and disinfection of high-touch areas in accordance with CDC guidelines.
  • Maintenance of cleaning protocols established by the employer for all other areas of the work site.
  • Establish protocols for when the work site has been exposed to a person who is a probable or confirmed case of COVID-19.
  • Providing employees access to regular handwashing with soap, hand sanitizer, and disinfectant wipes.
  • Cleaning of common areas – including break rooms, locker rooms, dining facilities, rest rooms, conference rooms, and training rooms – daily and between shifts.
  • Providing face coverings for employees to wear during their time at the work site, and mandating employees wear the face coverings while on the site, except to the extent an employee can maintain physical distance of six feet from other persons or is using break time to eat or drink. Employers must establish protocols specifically regarding how it will ensure proper physical distancing.
  • Informing all employees of the required protocols and practices in this section, in writing, in English and any language spoken by at least 10% of the employees who are at the work site.

Right to Refuse Work:

Under the ordinance, an employee may refuse to work for an employer if the employee reasonably believes the employer is in violation of the above requirements and provides notice to the employer of the alleged violation.

The city may investigate whether the employer was in violation of the requirements, as alleged by the employee. Within 15 days of written notice from the city, the employer must remedy any alleged violation that has been substantiated by the city.

If the city finds the employer wasn't in violation of the requirements, or if the employer provides proof to the city that it has cured any substantiated violation, the employee no longer has the right to refuse work.

Retaliation Prohibited:

Employers are prohibited from taking adverse action against an employee for:

  • Seeking to exercise their rights under the ordinance;
  • Participating in proceedings related to the ordinance; or
  • Refusing to come to work if based on an alleged violation substantiated by the city.

Emergency Paid Sick Leave (Employers with 500 or More Employees):

The ordinance also extends emergency paid sick leave requirements to employers with 500 or more employees nationally, which aren't covered by the federal Families First Coronavirus Response Act. See the ordinance for details.

Compliance Recommendations:

Sacramento employers should read the ordinance in full and ensure compliance.

The city of Santa Rosa California has approved an ordinance that temporarily expands emergency paid sick leave for employees within city limits. The ordinance is effective immediately and expires on December 31, 2020.

Background:

The federal Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees to provide emergency paid sick leave to employees who 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 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 son or daughter due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19 precautions.
  • 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.

Employers must provide full-time employees (those normally schedule to work at least 40 hours) with 80 hours of emergency paid sick leave. Part-time employees are entitled to paid sick leave amounting to the average number of hours they work over a two-week period.

During the emergency paid sick leave, 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 whose 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).

Under the federal law, employers of healthcare providers and emergency responders may exclude these employees from emergency paid sick leave.

Santa Rosa Ordinance:

Covered Employees:

The city's ordinance covers employees who:

  • Have worked at least two hours in Santa Rosa.
  • Perform "allowed or essential work," which means work activities and services permitted in Sonoma County Public Health Officer orders.

Expanded Requirements:

The Santa Rosa ordinance augments the FFCRA in the following ways:

  • Includes employees of businesses with 500 or more employees.
  • Requires employers of healthcare providers and emergency responders to provide emergency paid sick leave to these employees.
  • Mandates that all types of covered leave be compensated at the employee's regular rate of pay (as defined by the Fair Labor Standards Act) or the applicable minimum wage ($15 per hour), whichever is higher, up to a maximum of $511 per day (and a total of $5,110).

Exemption:

Under the federal law, employers with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if it would jeopardize the viability of the business as a going concern. Santa Rosa's ordinance doesn't apply to any employer that qualifies for this exemption.

Compliance Recommendations:

Santa Rose employers should review the ordinance in full and ensure compliance. The city has provided additional guidance here.

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.

Colorado

Colorado has enacted legislation (House Bill 20-1415) that prohibits employers from taking adverse action against a worker who raises safety or health concerns related to a public health emergency or who voluntarily wears their own personal protective equipment (PPE). House Bill 20-1415 is effective immediately.

Coverage:

The law covers all Colorado employers and employees. The law also covers any business in Colorado with five or more independent contractors.

Anti-Retaliation:

Employers are prohibited from taking adverse action against a worker who in good faith raises a reasonable concern to the employer, a government agency, or the public about workplace violations of health and safety rules or a significant workplace threat related to a public health emergency.

Exceptions:

Workers aren't protected if they disclose information they know to be false or with reckless disregard of whether the information is true or false. The law also doesn't authorize a worker to share individual health information that is otherwise prohibited from disclosure under federal or state law.

PPE:

The law also prohibits employers from taking adverse action against a worker who voluntarily wears their own PPE, such as a mask, faceguard, or gloves, if it:

  • Provides a higher level of protection than the equipment provided by the employer;
  • Is recommended by a federal, state, or local public health agency with jurisdiction over the workplace; and
  • Doesn't render the worker incapable of performing their job or prevent them from fulfilling their duties.

Other Protections:

Employers are also prohibited from taking adverse action against a worker who:

  • Opposes any practice they reasonably believe to be unlawful under the law.
  • Files a complaint, testifies, assists, or participates in an investigation, proceeding, or hearing regarding a matter the worker reasonably believes to be unlawful under the law.

Employer Notice:

Employers must post a notice of workers' rights under the law. The notice is available in English and Spanish.

Compliance Recommendations:

Colorado employers should review policies, practices, and supervisor training to ensure compliance with House Bill 20-1415.

Updated: July 17, 2020

The Colorado Department of Labor and Employment (CDLE) has terminated the emergency rule that required employers in certain industries to provide paid sick leave to employees for certain COVID-19 related purposes. The rule was terminated as a result of the enactment of similar requirements in Senate Bill 20-205, which is covered in the Compliance Alert below.

Colorado has enacted legislation (Senate Bill 20-205) that will require employers to provide paid sick leave and public health emergency leave to employees. The leave must be paid at least at the same rate the employee normally earns during worked hours.

PAID SICK LEAVE (ALL EMPLOYERS):

Effective January 1, 2021, employers with 16 or more employees must provide paid sick leave to their employees. For employers with 15 or fewer employees, this paid sick leave requirement takes effect January 1, 2022.

Accrual and Carryover:

Paid sick leave must accrue at a rate of at least one hour for every 30 hours worked, up to a maximum of 48 hours. Accrual begins when employment starts or the applicable effective date, whichever is later. However, employers have the option of providing all the paid sick leave at the beginning of the year, a practice commonly known a frontloading.

Employees are entitled to carry over up to 48 hours of unused paid sick leave to the following year.

Use:

Employees may use paid sick leave as it is accrued. The leave may be used for the following purposes:

  • The employee's or a family member's mental or physical illness, injury, or health condition;
  • The employee's or a family member's need for a medical diagnosis, care, or treatment related to an illness, injury, or condition;
  • The employee or a family member needs to obtain preventive medical care;
  • The employee or family member has been the victim of domestic abuse, sexual assault, or harassment and needs to:
    • Seek medical attention;
    • Get assistance from a victims' services organization;
    • Obtain mental health or other counseling;
    • Seek relocation services;
    • Obtain legal services, including preparation and participation in legal proceedings; or
  • A public official has ordered the closure of the school or place of care of the employee's child or the employee's place of business due to a public health emergency.

Notice and Documentation:

When the need for leave is foreseeable, the employee must make a good-faith effort to provide advance notice and schedule the leave so that it doesn't unduly disrupt the employer's operations. While employers may have a policy with reasonable procedures for providing notice when the need for leave is foreseeable, employers are prohibited from denying leave based on noncompliance with the policy.

For absences of four or more consecutive work days, employers may require reasonable documentation that the leave is for a covered purpose.

PUBLIC HEALTH EMERGENCY LEAVE (ALL EMPLOYERS)

In addition to the paid sick leave discussed above, employers must provide public health emergency leave (PHEL) in an amount based on the number of hours the employee works.

  • Full time employees: Employees who normally work 40 hours or more per week are entitled to at least 80 hours of PHEL.
  • Part-time employees: Employees who normally work fewer than 40 hours in a week are entitled to at least the greater of either the amount of time the employee is scheduled to work in a 14-day period or the amount of time the employee actually works during an average 14-day period.

Employees are only eligible for PHEL in the amounts described above once during the entirety of the public health emergency, even if it is amended, extended, restated, or prolonged. Employees may use PHEL until four weeks after the official public health emergency. Employers may count an employee's unused paid sick leave toward the PHEL the law requires.

Note: The law doesn't indicate when the PHEL requirements take effect. We will monitor the status and provide updates if the state provides additional guidance.

A public health emergency is defined as:

  • An act of bioterrorism, a pandemic flu, or an epidemic caused by a novel and highly fatal infectious agent for which an emergency has been declared by a federal, state, or local public health agency or a disaster emergency declared by the governor; or
  • A highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.

Use:

Employees may use PHEL for the following purposes:

  • To self-isolate because they are diagnosed with, or experience symptoms of, the communicable illness that is the cause for the public health emergency;
  • To seek or obtain medical diagnosis, care, or treatment if experiencing symptoms associated with a communicable illness that is the cause of the public health emergency;
  • To seek preventive care concerning a communicable illness that is the cause of the public health emergency;
  • If local officials or the employee's employer determines that the individual's presence on the job or in the community would jeopardize the health of others because of the individual's exposure to the communicable illness or because the employee is exhibiting symptoms of the communicable illness (regardless of diagnosis);
  • To care for a family member to whom any of the above applies;
  • To care for a child or other family member when the child's care provider is unavailable due to a public health emergency, or if the child's or family member's school or place of care has been closed due to a public health emergency, including if a school or place of care is physically closed but providing instruction remotely; or
  • If an employee is unable to work because the employee has a health condition that may increase susceptibility to or risk of communicable illness that is the cause of the public health emergency.

Notice and Documentation:

If the need for leave is foreseeable and the workplace is open, employees must notify their employer as soon as practical. Documentation isn't required for employees to use PHEL.

COVID-19 EMERGENCY PAID SICK LEAVE (ALL EMPLOYERS):

Effective immediately and through December 31, 2020, all employers must provide each employee with emergency paid sick leave for reasons related to the COVID-19 pandemic in the amounts and for the purposes specified in the emergency paid sick leave provisions of the federal Families First Coronavirus Response Act (FFCRA). Since the FFCRA already covers employers with fewer than 500 employees, Senate Bill 20-205 effectively extends the emergency paid sick leave requirements to larger employers so that all employers in the state must now comply with the FFCRA leave requirements. However, the FFCRA also included an exception under which an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the federal emergency paid sick leave requirement. As a result of the new state law, these employees are now entitled to emergency paid sick leave in Colorado. Additionally, under the FFCRA, employers with fewer than 50 employees may be eligible to claim an exemption from the FFRCA’s requirement 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, for COVID-19 related reasons if it would jeopardize the viability of the business. Under the new state law, small employers in Colorado will no longer be able to claim that exemption.

ANTI-RETALIATION (ALL EMPLOYERS):

Senate Bill 20-205 prohibits an employer from retaliating against an employee who uses leave to which they are entitled or otherwise exercises their rights under the law.

EMPLOYER NOTICE AND RECORDKEEPING (ALL EMPLOYERS):

Employers must provide employees with a written notice of their rights and display a poster developed by the Division of Labor Standards and Statistics. The poster must be displayed in English and in any language that is the first language spoken by at least 5% of the employer's workforce. If an employer's business is closed due to a public health emergency or a disaster emergency due to a public health concern, the posting requirement is waived for the period during which the business is closed.

Update: The COVID-19 Emergency Paid Sick Leave notice is now available in English and Spanish.

If an employer does not maintain a physical workplace, or an employee teleworks or performs work through a web-based platform, the employer should provide the notice through electronic communication or a conspicuous posting in the web-based platform.

For each employee, employers must retain for two years records documenting the hours worked, leave accrued, and leave used.

COMPLIANCE RECOMMENDATIONS:

Colorado employers should ensure compliance with Senate Bill 20-205 and train supervisors on handling requests for leave.

District of Columbia

Updated: August 31, 2020

The District of Columbia has enacted an emergency ordinance (B23-870) that requires employers to implement certain COVID-19 related policies and prohibits retaliation against employees for certain COVID-19 related scenarios. The ordinance takes effect immediately and expires on November 10, 2020.

COVID-19 Policies:

Employers in the District of Columbia must adopt and implement social distancing and worker protection policies to prevent transmission of COVID-19 in the workplace that adhere to the requirements of Mayor's Order 2020-080, or a subsequent Mayor's Order.

Mayor's Order 2020-080 relates to masks and generally requires employers to:

  • Post signage on their exterior doors stating that a person may not enter unless they are wearing a mask.
  • Exclude or attempt to eject individuals who aren't wearing masks or who remove their masks.
  • Provide masks to their employees.

The new law allows an employer to establish a policy requiring an employee to report to the employer a positive test for an active COVID-19 infection. However, employers are expressly prohibited from disclosing the identity of an employee who tests positive except to the Department of Health or another District or federal agency responsible for and engaged in contact tracing and the containment of community spread of COVID-19.

Anti-Retaliation Protections:

Under the new law, employers are prohibited from taking adverse action against an employee for:

  • Refusing to serve a customer or client, or to work within six feet of an individual, who isn't complying with the required workplace protections;
  • Testing positive for COVID-19, provided that the employee didn't physically report to the workplace after receiving a positive test result;
  • Being exposed to someone with COVID-19 and needing to quarantine;
  • Being sick and waiting for a COVID-19 test result;
  • Caring for someone who is sick with COVID-19 symptoms or who is quarantined; or
  • Taking actions to assert their rights under the law or to prevent a violation of the law.

Compliance Recommendations:

Employers in the District of Columbia should review policies, practices, and supervisor training to ensure compliance with the new law.

Updated: September 1, 2020

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 also temporarily expands the D.C. Family and Medical Leave Act (DCFMLA). The emergency ordinance took effect immediately and has been extended until November 16, 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.

The DCFMLA requires employers with 20 or more employees to provide eligible employees with 16 weeks of unpaid family and 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.

Paid Sick Leave Expanded:

DC has 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.

DCFMLA Expanded:

The emergency ordinance amends the DCFMLA to add a new category of leave called COVID-19 leave. Unlike with the other types of DCFMLA leave, all employers with employees in the District of Columbia must provide COVID-19 leave. Additionally, all employees who have worked for their current employer for at least 30 days are eligible for COVID-19 leave.

COVID-19 LEAVE:

Employees may take leave during COVID-19 if the employee cannot work due to:

  • A recommendation from a healthcare provider that the employee isolate or quarantine, including because the employee or an individual with whom the employee shares a household is at high risk for serious illness from COVID-19;
  • The need to care for a family member or an individual with whom the employee shares a household under a government or health care provider's order to quarantine or isolate; or
  • The need to care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee.

The leave may be unpaid, but employees may be entitled to paid leave under the federal Families First Coronavirus Response Act (FFCRA).

Eligibility for Unemployment Benefits Expanded:

The emergency ordinance 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 agency or medical professionals' recommendations or guidance; 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 emergency ordinance 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 DC should ensure compliance with the leave requirements and provide impacted employees information about expanded unemployment benefits. For details on the emergency ordinance, 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

The Michigan Occupational Safety and Health Administration (MIOSHA) has adopted an emergency rule requiring employers to take certain steps related to COVID-19. The emergency rule is effective immediately.

Exposure Determination:

Employers must evaluate routine and reasonably anticipated tasks and procedures to determine whether there is actual or reasonably anticipated exposure to COVID-19. Employers must categorize job tasks and procedures into specified risk categories.

Preparedness and Response Plan:

Employers must develop and implement a written COVID-19 preparedness and response plan that is consistent with the current federal Centers for Disease Control and Prevention (CDC) guidance and recommendations in "Guidance on Preparing Workplaces for COVID-19" from the U.S. Department of Labor. The plan must include the employee exposure determination and the measures the employer will implement to prevent employee exposure, including any:

  • Engineering controls;
  • Administrative controls;
  • Basic infection prevention measures;
  • Personal protective equipment (PPE);
  • Health surveillance; and
  • Training.

The employer must make the plan readily available to all employees and their representatives, whether via the employer's website, internal network, or hard copy.

Basic Prevention Measures:

Employers must:

  • Promote hand washing. Promote frequent and thorough hand washing, including by providing employees, customers, and visitors with a place to wash their hands. If soap and running water aren't immediately available, employers must provide antiseptic hand sanitizers or alcohol-based hand towelettes containing at least 60 percent alcohol;
  • Require sick employees stay home. Require employees who are sick to stay away from work or work in an isolated location;
  • Prohibit sharing equipment. Prohibit workers from using co-workers' phones, desks, offices, or other work tools and equipment, when possible;
  • Increase cleaning. Increase facility cleaning and disinfection to limit exposure to COVID-19, especially on high-touch surfaces (e.g., door handles);
  • Develop disinfection protocols. Establish procedures for disinfection in accordance with CDC guidance if it is suspected or confirmed that an employee, visitor, or customer has a known case of COVID-19;
  • Use proper disinfectants. Use EPA-approved disinfectants that are expected to be effective against COVID-19 and follow the manufacturer's instructions for use, such as concentration, application method, and contact time; and
  • Allow remote work. Create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.

Health Surveillance:

Employers must:

  • Conduct daily self-screening. This is required for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with COVID-19 and, if possible, a temperature screening;
  • Require symptom reporting. Direct employees to promptly report any signs and symptoms of COVID-19 to the employer before or during the work shift; and
  • Isolate. Physically isolate any employees known or suspected to have COVID-19 from the remainder of the workforce.

Known or suspected cases:

When an employer learns that an employee, visitor, or customer has COVID-19, the employer must:

  • Immediately notify the local public health department; and
  • Within 24 hours of learning of the case, the employer must also notify any co-workers, contractors, or suppliers who may have come into contact with the person with COVID-19.

The employer must allow employees with a known or suspected case of COVID-19 to return to the workplace only after they are no longer infectious according to the latest guidelines from the CDC and they are released from any quarantine or isolation order by the local public health department.

Workplace Controls:

Employers must:

  • Designate a safety coordinator(s). The safety coordinator(s) must implement, monitor, and report on the COVID-19 control strategies developed under these rules and must remain on-site at all times when employees are present;
  • Display health and safety posters. The posters must encourage staying away from the workplace when sick, cough and sneeze etiquette, and proper hand hygiene practices;
  • Ensure social distancing. Keep everyone on the worksite premises at least six feet from one another to the maximum extent possible. To reduce congestion, use ground markings, signs, and physical barriers, as appropriate to the worksite;
  • Provide face covering. Provide non-medical grade face coverings to employees at no cost to the employee;
  • Require employees wear face coverings. Require that face coverings be worn when employees can't consistently maintain six feet of separation from other individuals in the workplace. Face coverings are also required in shared spaces, including during in-person meetings and in restrooms and hallways; and
  • Consider face shields. Consider face shields when employees can't consistently maintain three feet of separation from other individuals in the workplace.

Personal Protective Equipment:

Employers must:

  • Provide PPE. Provide employees with the types of PPE for protection from COVID-19 appropriate to the exposure risk associated with the job, including respirators if necessary;
  • Follow government guidance. Follow current CDC and OSHA guidance for PPE; and
  • Ensure proper use. Ensure that the PPE is properly fitted and worn, used consistently, regularly inspected, maintained, and replaced, as necessary, and properly removed, cleaned, and stored or disposed of to avoid contamination of self, others, or the work environment.

Training:

Employers must provide training to employees on COVID-19. Any communications and training on COVID-19 must be provided in the primary languages common in the workplace.

The training must cover:

  • Workplace infection control practices;
  • The proper use of PPE;
  • Steps the employees must take to notify the business of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19; and
  • How to report unsafe working conditions.

Employers must provide updated training if the employer changes its preparedness and response plan or new information becomes available about the transmission or diagnosis of COVID-19.

Recordkeeping Requirements:

Employers must maintain records of all the following for at least one year:

  • Training;
  • Screening protocols;
  • A record of screening for each employee or visitor entering the workplace; and
  • Notices provided to local health departments and those who may have come into contact with an infected person.

Industry-Specific Requirements:

The rule includes industry-specific requirements. For details, see the text of the rule.

Compliance Recommendations:

Michigan employers should read the rule in full and implement appropriate workplace measures to ensure compliance.

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 Jersey has enacted legislation (Senate Bill S2380) that adds benefit protections for essential workers. The law is retroactive to March 9, 2020, and extends for the duration of the public health emergency declared under Executive Order 103.

Overview:

Essential workers who test positive for COVID-19 during the public health emergency are presumed to have contracted the virus at work. This means that covered workers would be entitled to workers' compensation, ordinary and accidental disability retirement, and any other benefits required by law to individuals suffering injury or illness during their employment.

Essential Employees:

An essential employee is an employee who, during a state of emergency:

  • Is a public safety worker, first responder, or other emergency responder;
  • Provides medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities, or homes;
  • Performs functions which involve physical proximity to members of the public and are essential to the public's health, safety, and welfare, including transportation services, hotel, and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home; or
  • Is deemed essential by the public authority declaring a state of emergency.

Compliance Recommendations:

New Jersey employers should review any workers' compensation claims related to COVID-19 that have been filed since March 9, 2020 to determine if they are now compensable. Workers' compensation claims paid under these circumstances will not affect the insurance premium rate for the employer's workers' compensation policy.

New York

A federal district court judge in New York has struck down key regulations implementing the Families First Coronavirus Response Act (FFCRA).

Background:

The FFCRA requires employers with fewer than 500 employees to provide paid leave to employees who are unable to work or telework because of certain COVID-related reasons. The law requires two types of paid leave: Emergency Paid Sick Leave and Public Health Emergency Leave.  Under the law, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the leave requirements. The law went into effect on April 1, 2020 and expires on December 31, 2020.

On April 1, 2020, the Department of Labor (DOL) issued regulations that defined key terms and made important clarifications to the law, including the following:

  • Work-Availability Requirement: Entitled employees to FFCRA leave only if there was work available to them. For instance, if the employer sends employees home and stops paying them because of a lack of work, the employee wouldn't be eligible for FFCRA leave under the regulations;
  • Definition of Healthcare Provider: Defined healthcare provider as 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;
  • Intermittent Leave: Allowed employees to take leave intermittently for certain qualifying reasons but only if the employer agrees to it;
  • Documentation: Required that prior to taking FFCRA leave, employees must submit certain documentation to the employer.

Shortly after the regulations were issued, the attorney general for the state of New York filed a lawsuit challenging each of the four provisions above, arguing that they unduly restrict FFCRA leave.

New York District Court Ruling:

Work-Availability Requirement:

On August 3, 2020, a federal district court judge in New York struck down the regulations' work-availability requirement, finding that the explanation the DOL provided in the regulations for the requirement is insufficient.

Definition of Healthcare Provider:

The judge also struck down the regulations' definition of healthcare provider as overly broad because it hinges entirely on the identity of the employer and includes employees whose roles have no connection with providing healthcare services. For instance, an English professor, librarian, or cafeteria manager at a university with a medical school could all be considered "healthcare providers" under the definition.

Intermittent Leave:

The judge ruled that the DOL was within its authority to limit intermittent leave to certain qualifying reasons. However, the judge struck down the part of the provision that required employer consent for employees to take the leave intermittently.

Documentation:

The judge struck down the requirement that documentation be provided prior to the employee taking the leave.

Remaining Regulations Not Impacted:

All other provisions of the FFCRA regulations stand.

Compliance Recommendations:

The judge's ruling creates confusion about how to apply the rules for paid leave under the FFCRA. For instance, it's unclear whether the ruling applies to just employers in the Southern District of New York (the counties of New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan) or employers nationally or how employers should handle leave that was previously denied based on the struck-down regulations. The ruling itself doesn't address these issues, and the DOL hasn't responded to the ruling yet. All employers should monitor the situation closely and discuss the implications of the ruling with their legal counsel.

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 Order BLI 7-2020 (the "Order"), which amends the Oregon Family Leave Act (OFLA) to permit employees to take leave to care for a child when their school or childcare provider closes due to COVID-19. The Order is effective immediately.

Background:

The OFLA requires employers with 25 or more employees in Oregon to provide eligible employees with job-protected leave for certain qualifying situations, including:

Leave type

Description

Employee eligibility

Duration of leave

Parental leave

Leave for the birth, adoption, or foster placement of a child.

Employees who have worked for their employer for at least 180 days.

Up to 12 weeks per year

Serious health condition

Leave for an employee's own serious health condition, or to care for a spouse, parent, parent-in-law, or child.

Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.

Up to 12 weeks per year

Pregnancy disability leave

Before or after the birth of a child or for prenatal care.

Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.

Up to 12 weeks per year (in addition to other types of leave)

Sick child leave

Leave to care for a child with a non-serious health condition that requires home care.

Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.

Up to 12 weeks per year (if an employee used all 12 weeks for parental leave, employees can take up to 12 more weeks for sick child leave)

Military family leave

Leave if an employee's spouse is a service member who's been called to, or is on leave from, active duty.

Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.

Up to 14 days per year

Bereavement leave

Leave following the death of a family member.

Employees who have worked for their employer for at least 180 days, averaging at least 25 hours per week during the 180 days before they start leave.

Up to 2 weeks

Temporary Rules:

Under a temporary administrative order, effective March 18, 2020, Oregon employees may be absent for up to 12 weeks, on a continuous or intermittent basis, because the employee's child's school or place of care has been closed by public authorities, including out of concerns related to the COVID-19 outbreak.

Amendment:

In September 2020, the Labor Commissioner made the temporary administrative order expanding sick child leave permanent. Order BLI 7-2020 amends the OFLA by permitting employees to take up to 12 weeks of job protected leave per year to care for a child whose school or childcare provider closes due to COVID-19. This leave may be taken intermittently.

School closures:

If access to the physical location where the employee's child receives instruction or care is closed due to COVID-19 precautions, the school or childcare provider is considered "closed" for purposes of OFLA sick child leave. This is true even if instruction is being provided online or through another format such as "distance learning," and the child is still expected or required to complete assignments.

Documentation:

Employers may require employees to provide documentation demonstrating the need for such leave, including:

  • The name of the child receiving the care;
  • The name of the childcare provider or school that is unavailable or closed; and
  • A statement that no other family member is available to provide care.

Employers may require an additional statement from an employee explaining the special circumstances that necessitate care when the child is over 14 years old.

Compliance Recommendations:

Employers with employees in Oregon should review their policies and practices to ensure compliance with the Order.

Note: The Family and Medical Leave Policy for Oregon employees in the HR411® Employee Handbook Wizard has been updated to reflect the changes made by Order BLI 7-2020. Check the Alerts section of the Employee Handbook Wizard home page to incorporate these changes into your handbook.

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

The City of Philadelphia passed two ordinances related to paid sick leave. Ordinance 200306 amends the city's paid sick and safe time law (also known as the Promoting Healthy Families and Workplaces Ordinance (PHFWO)). Ordinance 200303 requires new public health emergency leave (PHEL) for workers who do not receive leave under the federal Families First Coronavirus Response Act (FFCRA).

Ordinance 200306:

Ordinance 200306 requires certain healthcare employees who contract a disease during a declared pandemic or epidemic to receive compensation and medical care or reimbursement. Ordinance 200306 is effective immediately.

Ordinance 200303:

Ordinance 200303 requires PHEL for employees, gig workers, and others who are not entitled to leave under the federal FFCRA. Under the law, a public health emergency (PHE) is an emergency related to a public health threat or risk in Philadelphia and is declared by a federal, state, or local official.

Covered Employees:

The law covers employees and individuals who perform at least 40 hours of work per year in Philadelphia for an employer or hiring entity. This includes domestic workers, certain healthcare professionals, home healthcare workers, food delivery workers, and transportation workers.

Reasons for Leave:

Covered workers may use leave when they're unable to work for reasons such as:

  • They're subject to a federal, state, or local quarantine or isolation order that relates to the PHE;
  • A health care provider advised them to self-quarantine due to concerns related to a PHE;
  • They're experiencing symptoms related to a PHE and are seeking a medical diagnosis;
  • Their child's school or place of care has been closed, or their childcare provider is unavailable, due to PHE precautions;
  • They're caring for an individual who is subject to a federal, state, or local quarantine or isolation order, or whose health care provider advises that individual to self-quarantine due to PHE concerns; or
  • They're experiencing any other substantially similar condition specified by the U.S. Secretary of Health and Human Services in consultation with the U.S. Secretary of the Treasury and the U.S. Secretary of Labor.

Note: Workers aren't entitled to PHEL if they can reasonably perform work remotely, considering all relevant circumstances that affect their ability to perform remote work.

If a federal or state law requires a hiring entity to provide paid leave or paid sick time related to a PHE, the hiring entity may require PHEL to run concurrently with such leave unless another law prohibits concurrent use. Hiring entities must also provide additional PHEL if Philadelphia law's requirements exceed the requirements of other laws.

Amount of PHEL:

Covered employees are entitled to leave based on the number of hours worked:

Hours Worked

Amount of Leave

40 or more hours per week

80 hours or an amount of leave equal to their average hours worked over a 14-day period (whichever is greater), up to 112 hours.

Fewer than 40 hours per week

Leave equal to the average number of hours worked in a 14-day period.

Varying Hours per Week

Average hours in a  14-day period is calculated by using the average hours the individual worked per day over the six-month period prior to the date the PHE was declared, multiplied by 14 (including any hours that the individual took any type of leave). If the individual didn't work over such a period, use the individual's reasonable expectation at their time of hire of the average hours they would normally receive in a typical 14-day period.

Leave can be taken in increments as small as the lowest increment that an entity's payroll system uses to track absences or other uses of time.

Relationship to existing paid leave policies:

The law doesn't require a hiring entity to change its existing sick leave policies or provide additional paid leave if it already provides paid sick leave that meets or exceeds the requirements of the law. Under existing policies, employees must be able to use their leave for the same purposes and under the same conditions.

Employee Notice:

When the need for leave is foreseeable, workers must provide notice as soon as feasible. A hiring entity cannot require an individual to find coverage for any shift during which the individual uses PHEL.

A hiring entity can request that workers submit self-certified statements declaring that leave was used for a lawful purpose. If employers elect this option, it's a best practice to request certification on a consistent basis.

Employer Notice:

By October 2, 2020, hiring entities must provide notice to individuals that they're entitled to PHEL. Notice must also indicate that retaliation for requesting or using PHEL is prohibited. The notice must be provided in English and in any language that is the first language spoken by at least 5% of the employer's workforce.

Employers can satisfy this request by posting a notice in a conspicuous area of the workplace or by supplying each individual with a copy of the notice. If employees perform telework, or the hiring entity doesn't have a physical location, the notice can be furnished electronically.

Pay:

Workers are entitled to their regular rate of pay during PHEL, with the same benefits, including health insurance.

Reinstatement:

When leave ends, hiring entities must return covered individuals to the position they held when their leave began.

Recordkeeping:

A hiring entity must keep, for at least two years, records documenting hours worked, PHEL taken by employees, and payment for PHEL.

Anti-retaliation:

Employers are prohibited from taking adverse action against an employee for exercising their rights under the law and/or interfering with an employee's ability to take PHE. This includes counting a PHEL absence against an employee for purposes of the entity's absence control policy.

Compliance Recommendations:

Employers with employees in Philadelphia should review their policies and practices to ensure compliance with both ordinances.

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.

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.

Virginia

The Virginia Safety and Health Codes Board enacted a temporary workplace safety standard in response to the COVID-19 pandemic. The Emergency Temporary Standard is effective July 27, 2020.

Below is an overview of the standard. To read the standard in full, click here.

Assessment and Classification:

Employers must conduct an assessment of the workplace for hazards and job tasks that potentially expose employees to COVID-19. Employers must also classify each job task according to the risk of exposure.

Self-Monitoring:

Employers must notify employees of the methods of exposure and transmission of COVID-19 and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure or are experiencing signs of an oncoming illness.

Notification Requirements:

Employee Notification:

Employers must develop and implement policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19.

Employer Notification:

Generally, if an employer receives a report of an individual who has tested positive for COVID-19, the employer has 24 hours to notify individuals who may have been exposed, the building or facility owner, and the Virginia Department of Health. When notifying the building or facility owner and other individuals, employers must keep the identity of the infected person confidential. Employers must also notify the Virginia Department of Labor and Industry (DOLI) within 24 hours of the discovery of three or more employees within a 14-day period testing positive for COVID-19.

Return to Work (Infected Employees):

Employers must develop and implement policies and procedures for employees with known or suspected cases of COVID-19 and may not permit employees known or suspected to be infected with COVID-19 to report to, or remain at, the work site until they're cleared to return to work (using a symptom- or test-based strategy). A symptom-based approach excludes employees from the workplace until at least three days have passed since recovery and at least 10 days have passed since symptoms first appeared. A testing approach excludes infected employees until they have a negative COVID-19 test result. If an employer elects to require employees to test negative for COVID-19 before returning to work, the employer must pay for the tests.

Employers are not permitted to use anti-body testing when making return to work decisions.

Workplace Controls:

Social Distancing:

Employers must ensure that employees observe physical distancing at all times and leverage verbal announcements, signage, or visual cues to promote physical distancing. Access to common areas, breakrooms, or lunchrooms must be closed or controlled.

Sanitation and Disinfecting:

Employees that interact with customers or other persons, must be provided with and immediately use supplies to clean and disinfect surfaces contacted during the interaction.

All common spaces, including bathrooms, frequently touched surfaces and doors must, at a minimum, be cleaned and disinfected at the end of each shift. All shared tools, equipment, workspaces, and vehicles must be cleaned and disinfected prior to transfer from one employee to another. Employers must ensure that cleaning and disinfecting products are readily available to employees.

Personal Protective Equipment (PPE):

When engineering, work practice, and administrative controls are not feasible or do not provide sufficient protection, employers must provide PPE to their employees and ensure its proper use in accordance with VOSH laws, standards, and regulations. Employers must also ensure compliance with respiratory protection when the nature of an employee's work or work area doesn't allow physical distancing. When multiple employees are occupying a vehicle for work purposes, the employer must ensure compliance with respiratory protection and PPE standards applicable to its industry.

Very High and High Risk of Exposure:

The following requirements for employers with hazards or job tasks classified as "very high" or "high" exposure risk also apply:

  • To the extent feasible, employers must install physical barriers, such as clear plastic sneeze guards, where such barriers will aid in mitigating the spread of virus transmission.
  • Prior to the start of each shift, prescreen or survey each covered employee to ensure they do not have signs or symptoms of COVID-19.
  • Limit non-employee access to the workplace or restrict access to only certain areas to reduce the risk of exposure.
  • Where feasible, postpone non-essential travel and implement telework, staggered shifts, phone and video conferencing, and curbside pickup.
  • Develop an infectious disease preparedness and response plan (this requirement also applies to employers with hazards or job tasks classified as "medium" if the employer has 11 or more employees) by August 26, 2020. The plan must address the level(s) of risk associated with the hazards employees are exposed to, and the engineering, administrative, and PPE controls necessary to address those risks.

Examples of high and very high risks tasks include healthcare and mortuary services. Medium risk job tasks involve certain specialty work, like meat processing and commercial transportation, as well as tasks that involve frequent interaction with the public, like stores and restaurants. Traditional office work tasks are classified as lower risk.

Training:

Employers with hazards or job tasks classified as "very high," "high," or "medium exposure" risk must provide training to all employees working at the place of employment regardless of employee risk classification by September 25, 2020. Employers must prepare and maintain a written certification of training completed for each employee. Lower risk employers do not have to provide formal training but must distribute information to employees about hazards and characteristics of COVID-19.

Anti-Retaliation Provisions:

Employers may not retaliate against an employee for exercising their rights under the standard, voluntarily providing and wearing their own PPE, or raising a reasonable concern about infection control.

Additional Information:

The DOLI plans to provide supplemental materials on infectious disease preparedness and response plans, training, and more here.

Compliance Recommendations:

Employers should review the standard in full as well as DOLI guidance to ensure their policies, procedures, and training comply.