Thu, 04/30/2020
Several states and local jurisdictions are expanding sick leave laws to ease the financial burden workers are experiencing due to the COVID-19 pandemic.
On April 10, 2020, the District of Columbia temporarily expanded D.C.’s Accrued Sick and Safe Leave Act (“ASSLA”) to allow employees to take up to two weeks (or 80 hours) of paid sick leave if the employee misses work for any reason for which paid leave may be provided by the federal Families First Coronavirus Response Act (“FFCRA”). As discussed here , the FFCRA mandates that employees who are quarantined due to COVID-19 or experience symptoms of COVID-19 and are seeking a diagnosis are entitled to up to eighty (80) hours of paid sick leave. The sick leave provided under this ASSLA expansion is available in addition to the leave provided by the FFCRA. However, employers can require an employee use all other forms of sick leave (both federal and state) before using leave under this policy. The ASSLA expansion applies to employers that have 50-499 employees but does not apply to health care provider employers.
On March 18, 2020, New York enacted a statewide sick leave law to provide benefits to workers affected by COVID-19. Specifically, employees who are subject to a mandatory or precautionary quarantine requirements by the state of New York are eligible for sick leave. The benefits vary based on the size and type of the employer (determined as of January 1, 2020):
- Employers with 10 or fewer employees and a net income of less than $1 million must provide unpaid sick leave until the termination of any quarantine or isolation. These employers also must guarantee employees access to Paid Family Leave and disability benefits, with no waiting period, for the period of quarantine including wage replacement for their salaries up to $150,000.
- Employers with 11-99 employees and employers with 10 or fewer employees and a net income greater than $1 million must provide at least 5 days paid sick leave, and then unpaid sick leave until the termination of any quarantine or isolation. These employers also must guarantee employees access to Paid Family Leave and disability benefits, with no waiting period, for the period of quarantine including wage replacement for their salaries up to $150,000.
- Employers with 100 or more employees and public employers (no size limit), must provide at least 14 days of paid sick leave, and then unpaid sick leave until the termination of any quarantine or isolation.
Unlike the District of Columbia’s new sick leave law, New York’s sick leave will not be in addition to federal sick leave under the FFCRA. Rather, the use federal and state sick leave shall offset each other.
On March 11, 2020, Colorado passed Health Emergency Leave with Pay (“HELP”) rules, which temporarily require employers in certain industries to provide two weeks (80 hours) of paid sick leave, at 2/3 pay, to employees with flu-like or other respiratory illness symptoms who are being tested for COVID-19 or who are under instructions from a health care providers to quarantine or isolate due to the risk of having COVID-19. Colorado has been regularly updating these rules to expand the covered industries and employees. Employees working jobs in the following industries are currently covered:
- Leisure and hospitality
- Retail stores that sell groceries
- Real estate sales and leasing
- Offices and office work
- Elective medical, dental, and health services
- Personal care services
- Food and beverage manufacturing
- Food services
- Child care
- Education, including transportation, food service, and related work with educational establishments
- Home health, if working with elderly, disabled, ill, or otherwise high-risk individuals
- Nursing homes
- Community living facilities
As noted above, the HELP rules provide up to two weeks of paid sick leave at 2/3 pay. There are a number of restrictions to the availability of benefits. First, the two weeks are counted as 14 “calendar” days and the employer is only required to pay the employee for days in which the employee was actually going to work. So, if the employee only works 8 hours per day Monday-Thursday, for example, she will only be entitled to a maximum of 8 paid sick leave days (64 hours) at 2/3 pay over the two-week period. Second, if the employee is quarantining due to a pending COVID-19 test and receives a negative test result before the end of the two weeks, the paid leave ends. Finally, employers are not required to provide this paid leave under HELP rules if they otherwise provide paid leave in compliance with HELP rules. The only exception is if employees have already used all their sick leave and then experience flu-like or respiratory illness symptoms. In those situations, the employee is entitled to additional sick leave under HELP rules.
Finally, certain cities in California have passed new COVID sick leave laws, including Los Angeles, San Francisco, and San Jose.
- Los Angeles: On April 7, 2020, the Mayor issued an emergency order providing supplemental paid sick leave for employees affected by COVID-19 who work for an employer with 500 or more employees within Los Angeles or 2,000 or more employees in the United States. The benefits extend to those who have been advised to self-quarantine, those who must care for a family member who has been advised to self-quarantine, or those who must care for a family member whose senior care provider or whose school or child care provider is unavailable due to the recommendation of a public official (if alternative caregiver unavailable). These employees are generally entitled up to 80 hours of paid sick leave, but there are many exemptions for certain types of workers already covered by broader sick leave policies and businesses that have already been closed for at least 14 days or provided 14 days of leave.
- San Francisco: Effective April 17, 2020, San Francisco employees working in businesses with 500 or more employees worldwide are entitled to up to 80 hours of paid “Public Health Emergency Leave.” Employees may use this leave under many circumstances, including if (1) they are subject to a quarantine or isolation order, (2) they are experiencing symptoms of COVID-19 and are seeking a medical diagnosis, (3) they are caring for a family member who is experiencing symptoms or subject to a quarantine or isolation order, (4) they are caring for a family member whose school or place of care is closed due to the COVID-19 emergency, or (5) they are experiencing any other substantially similar condition specified by the Local Health Officer under the FFCRA. This leave must be paid at the employee’s regular rate of pay.
- San Jose: Effective April 7, 2020, San Hose passed an emergency paid sick leave ordinance which applies to all businesses that are not required (in whole or in part) to provide paid sick leave benefits under the FFCRA. This ordinance makes 80 hours of paid sick leave available to employees who must leave their residence to perform essential work. Employees are entitled to leave at their regular rate, unless they are caring for another individual, in which case they are only entitled to take leave at 2/3 rate. Employers that already have paid leave policies that are equivalent to the requirements of the ordinance are exempt to the extent the benefits overlap.
