LEGISLATIVE UPDATE – WHAT’S GOING ON BESIDES CORONAVIRUS

Posted On June 26, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

June 26, 2020

 

Seems like in the past several weeks this blog has been consumed by COVID-19 news – almost every day, at some points.  And before that, it was mostly paid family and medical leave.  Well, the world isn’t all COVID-19 and PFML so we thought we’d take a look at the bigger picture of legislative activity throughout the country. 

At Matrix we track LOTS of pending legislation; currently, we have almost 600 bills on OUR radar.  Many of these were introduced in early 2020 and have seen no activity since COVID-19 took over our lives.  So in order to bring this down to a manageable size, we are focusing here on bills of interest that (1) relate to leave, accommodations, pregnancy, or COVID-19; and (2) have progressed in the applicable legislature in the past few weeks. 

This information is current as of 6/25/2020.

COVID-19 and PFML

There are still bits of COVID and PFML legislative news.  See the blurbs below on Rhode Island and Virginia for some PFML developments; and District of Columbia (an emergency bill already enacted), Massachusetts, Washington, and the U.S. for COVID updates.  No other trends going on that we can see except both California and Massachusetts have introduced bills for bereavement leave.

Passed legislation               

Oh, and one more thing.  Remember that a few previously-passed laws go into effect soon: 

  • The increase in New Jersey Family Leave Insurance benefits from 6 weeks to 12 weeks is effective July 1.
    See our blog post here.
  • The increases in California Paid Family Leave and San Francisco Paid Parental Leave benefits, each going
    from 6 to 8 weeks, are also effective July 1.See our blog post here.
  • Illinois’s School Visitation leave (provides up to 8 hours per school year for school conferences) adds new
    leave reasons relating to a parent’s need for time off due to academic and behavioral issues.
    This is effective August 1, 2020 – helpful if any schools return to in-person education, I guess!

Now, let’s take a cruise together to see what’s happening in your state:

 

CALIFORNIA:      CA A 2399

  • Introduced:           02/28/2020
  • Status:                   05/26/2020 – Passed Assembly, to Senate
  • Subject:                 Amends CA Paid Family Leave law
  • Provisions:
    • For purposes of military exigency leaves under Paid Family Leave, revises definitions of “care recipient,”
      “care provider,” and “family care leave”
  • Proposed effective date:01/01/2021

CALIFORNIA:      CA S 1383

  • Introduced:           02/21/2020
  • Status:                   06/09/2020 – In Senate Committee on Appropriations: To Suspense File
  • Subject:                 Amends CA Family-School Partnership Act
  • Provisions:
    • Removes the employer size limitation of 25 or more employees in one worksite
    • Clarifies that leave to address a child care provider or school emergency includes a school closure
      due to a federal, state, or local government declaration of a state of emergency
    • Removes the limitation of 40 hours per year for leave due to a child care provider or school emergency
    • Leave to enroll a child in school or a child care facility and to attend school activities remains limited to
      40 hours per year and 8 hours per calendar month
  • Proposed effective date:01/01/2021

 

CALIFORNIA:      CA A 2992

  • Introduced:           02/21/2020
  • Status:                   06/11/2020 Passed Assembly; to Senate
  • Subject:                 Amends laws relating to leave for victims of domestic violence, stalking, and sexual assault
  • Provisions:
    • Expands leave of absence and other protections to include victims of a crime or that caused physical injury
      or that caused mental injury and a threat of physical injury.
  • Proposed effective date:01/01/2021

 

CALIFORNIA:      CA A 2999

  • Introduced:            02/21/2020
  • Status:                    06/10/2020 – Passed Assembly; to Senate
  • Subject:                 Bereavement leave
  • Provisions:
    • Requires employers to provide up to 10 business days of unpaid bereavement leave due to loss
      of a family member (parent, child, spouse, domestic partner, sibling, grandparent, grandchild); leave
      need not be taken consecutively;
      must be used within 3 months of date of death
  • Proposed effective date:01/01/2021

 

COLORADO:       CO S 205 

  • Introduced:           05/26/2020
  • Status:                   06/11/2020 – In House, to second reading
  • Subject:                 “Healthy Families and Workplaces Act” – creates paid sick and safe leave law
  • Provisions:
    • Requires employers to provide up to 48 hours of paid leave per year to employees for the following reasons:
    • Employee’s or a family member’s medical needs
    • Employee or a family member is a victim of domestic abuse, sexual assault, or harassment
    • Closure of a child’s school orplace of care, or the employee’s place of business, due to a public health
      emergency
    • Provides an additional 14 days of paid sick leave (up to 80 hours) due to a public health emergency for
      leave reasons similar to the Families first Coronavirus Response Act
  • Proposed effective date:
    • Paid sick &safe leave – 01/01/2021
    • Public health emergency leave – upon passage through 12/31/2020

 

DISTRICT OF COLUMBIA               DC B 757 and DC B 759

  • Introduced:           05/18/2020
  • Status:                   Enacted – Emergency Law – Signed by Mayor
  • Subject:                 Amends DC FMLA and DC Accrued Sick and Safe Leave Act
  • Provisions:
    • Adds DC FMLA leave for quarantine, caring for family member with COVID-19, or school closures;
      applies to all employers regardless of size; employee eligibility is 30 days; included in DC FMLA total
      16-week entitlement
    • Adds 2 weeks/80 hours paid sick leave for same reasons as FFCRA EPSL; employee eligibility is 15 days;
      applies to employers with 50-499 employees (not a health care provider); payments are deducted from
      employee entitlement to FFCRA or company policy paid leave
  • Effective date:
    • DC B 757 & 759: In effect immediately, through 09/06/2020
    • NOTE:DC B 758:Identical. 758 is pending as a “temporary bill,” so if it passes will go into effect following
      a 30-day congressional review and then remain in effect for 225 days.

 

DISTRICT OF COLUMBIA:              DC B 734

  • Introduced:           05/21/2020
  • Status:                   05/21/2020 – ENACTED
    • TEMP LAW Signed by Mayor 05/21/2020; pending 30-day Congressional review period
  • Subject:                 Amends DC Accrued Sick and Safe Leave Act to provide COVID-19-related leave
  • Provisions:
    • Adds 2 weeks/80 hours paid sick leave for same reasons as FFCRA EPSL; employee eligibility is 15 days;
      applies to employers with 50-499 employees (not a health care provider); payments are deducted from
      employee entitlement to FFCRA or company policy paid leave
  • Effective date:30 days after Mayor’s signature (06/20/2020) if no Congressional action – but may
    cover leaves starting with public emergency declared on 03/11/2020; expires 225 days after going into effect

 

ILLINOIS:                              IL H 4871

  • Introduced:           02/11/2020
  • Status:                   03/05/2020 – In House Committee on Labor & Commerce: To Subcommittee on Business
    and Industry Regulations
  • Subject:                 Amends Victims’ Economic Security and Safety Act
  • Provisions:
    • Adds protections for victims gender violence (violence based at least in part on individual’s actual
      or perceived gender)
  • Proposed effective date:If passed before July 1, 2020, effective date is January 1, 2021; if passed July 1, 2020,
    or after, effective date is June 1, 2021

 

MASSACHUSETTS:           MA S 2713

  • Introduced:           05/21/2020
  • Status:                   05/21/20 – To Senate Ways & Means Committee
  • Subject:                 Bereavement leave
  • Provisions:
    • Leave up to 10 business days per 12-month period to grieve or make arrangements due to the death of a
      family member (child, parent, guardian, spouse, or person in a substantive dating or
      engagement relationship who lived with the employee);
      • Must be taken within 30 days of employee’s notice of death
      • Covers employers with 25 or more employees in Massachusetts
  • Proposed effective date:01/01/2021

 

MASSACHUSETTS:           MA H 4566

  • Introduced:           03/12/2020
  • Status:                   06/22/2020 – To House Ways & Means Committee
  • Subject:                 Employment protections for contract workers subject to abuse
  • Provisions:
    • Provides up to 15 work days of leave in any 12-month period to contract workers (not employees)
      who are victims of abuse (including domestic violence, sexual assault, stalking, and kidnapping)
      for numerous related reasons, including medical care, victim services or legal counseling, court appearances,
      relocation, etc.
  • Proposed effective date:90 days after approval

 

MASSACHUSETTS:           MA H 4738

  • Introduced:           05/14/2020
  • Status:                   05/22/2020: Filed as House Docket 5071
  • Subject:                 Provides workplace procedures for manufacturing and factory workers
  • Provisions:
    • Provides up to 14 days of paid sick leave for manufacturing and factory workers who self-report potential
      COVID-19 symptoms or close contact, even if testing availability is limited or workers are awaiting result
    • Includes other workplace safety procedures related to COVID-19
  • Proposed effective date:90 days after approval
NEW HAMPSHIRE:          NH S 759

 

  • Introduced:           02/13/2020
  • Status:                   03/12/2020: Passed Senate; to House
  • Subject:                  Reasonable Accommodations for Pregnant Employees
  • Summary:
    • Requires an employer to provide reasonable accommodations to an employee related to the employee's
      pregnancy or childbirth and makes the failure to provide such accommodations an unlawful discriminatory
      practice
  • Proposed Effective Date:90 days after passage

 

NEW YORK:                        NY A 10466/NY S 8292

  • Introduced:           05/22/2020
  • Status:                   05/24/2020 – amended in Assembly Committee on Labor
  • Subject:                 Amends NY paid sick/quarantine leave law related to COVID-19
  • Provisions:
    • Adds coverage for individuals subject to quarantine who voluntarily participate in a precautionary quarantine
      or pursuant to a health care provider’s recommendation
    • Makes paid benefits available “in each instance” the employee meets the qualifications for
      quarantine or isolation due to COVID-19 under the act
  • Proposed effective date:Immediately upon passage

 

RHODE ISLAND:                RI S 2831

  • Introduced:           03/12/2020
  • Status:                   03/12/2020 – to Senate Committee on Labor
  • Subject:                 Temporary Caregiver Insurance Benefits
  • Provisions:
    • Increases TCI benefits per year from 4 weeks to 6 weeks (effective 01/01/2021)
      and 8 weeks (effective 01/01/2022)
  • Proposed effective date:01/01/2021 and 01/01/2022
TENNESSEE:                        TN S 2520 (same as TN H 2708)

 

  • Introduced:           02/05/2020
  • Status:                   06/11/2020 – to Governor
  • Subject:                 Tennessee Pregnant Workers Fairness Act
  • Provisions:
    • Requires employers to provide workplace accommodations to employees for medical needs
      arising from pregnancy, childbirth, or related conditions; prohibits employer from requiting employee to take
      leave if a workplace
      accommodation is available and won’t impose an undue hardship
  • Proposed effective date:07/01/2020

 

UNITED STATES:               US H 6800

  • Introduced:           05/15/2020
  • Status:                   06/01/2020 – passed House; second reading in Senate
  • Subject:                 Amendments to Families First Coronavirus Response Act
  • Provisions:
    • Numerous expansions of existing FFCRA including:
      • Changing expiration date to 12/31/2021
      • Changing employer coverage to all employers with 1 or more employees
      • Expanding leave reasons under Emergency FMLA to include same leave reasons as under Emergency
        Paid Sick Leave Act
      • Increasing cap for EFML benefits to $12,000
      • Providing expansive definitions of “parent” and ”family member”
      • Creating a separate 12-week bank of leave entitlement for EFMLA
      • Creating job restoration rights to same or equivalent position following EPSL
  • Proposed effective date:Not stated

 

VIRGINIA:                           VA H 30

  • Introduced:           01/08/2020
  • Status:                   Enacted 05/21/2020
  • Subject:                 Paid family and Medical Leave
  • Provisions:
    • Requires Chief Workforce Development Advisor and Secretary of Commerce and Trade to conduct a
      study and deliver a report to Governor by September 30, 2020, regarding development, implementation,
      and costs of a statewide PFML program for all employers in VA
  • Effective date:July 1, 2020

 

WASHINGTON:                 PROCLAMATION 20-46.1

  • Introduced:           06/09/2020
  • Status:                   Signed by Governor 06/9/2020
  • Subject:                 Protections for workers with high risk of COVID-19 complications per CDC guidelines
  • Provisions:
    • Continues provisions of Proclamation 20-46 “ . . . to prevent all employers, public or private, from failing to
      provide accommodation to high-risk workers, as defined by the Centers for Disease control and Prevention,
      that protects them from risk of exposure to the COVID-19 disease on the job. If an employer determines
      that alternative work arrangements are not feasible, the employer is prohibited from failing to permit
      an employee to utilize all available accrued leave options free from risk of adverse employment action.”
  • Effective date: Effective immediately, through 08/01/2020

Whew! That was a ride, wasn’t it? Don’t worry, there’s a lot going on but you don’t need to keep track of every single thing because, frankly, you have us! So sit back, pour a cold one and enjoy the summer in Future-Post-COVID World, and let us keep you informed and prepared.

TENDING TO THE MASS-ES – AND OTHERS!

Posted On May 26, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

May 26, 2020

 

It’s been a long, cold Spring, what with COVID-19, quarantines and a plethora of related legislation to unpack. If there’s anything to help remind us that time – and regular, good old leave legislation – marches on, it’s the steady approach of Massachusetts PFML, with benefits starting in January, 2021. Webnair Invite

Join my colleague Gail Cohen and me for our next market webinar: Paid Family and Medical Leave – To Massachusetts, and Beyond! We’ve weathered the storms of New York and Washington State. Massachusetts is still a shifting landscape as the state continues to release new regulations and information just a few months out.

Our last few webinars attracted more than a thousand friends and colleagues each – we hope you’ll be one of the faithful for this important splash of non-COVID-related reality!

This Thursday, May 28, 2 PM Eastern. Click here to register for this event and submit questions in advance!

 

WRANGLING ALL THAT COVID-19 NEWS – THE LAST (NOPE…) WE MEAN NEXT ROUND-UP

Posted On April 29, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Armando Rodriguez - Law Clerk, Compliance And Legal Department

April 29, 2020

 

Cowboy Radar

COVID news just keeps coming. In our last Roundup we covered the DOL’s latest FFCRA Q&As, USERRA and COVID-19, and orders from the governors of California and Washington. Today we saddle up with:

  • More ADA guidance from the EEOC
  • OSHA – employer obligations to provide a safe workplace
  • COVID goes to court
  • COVID in the city
  • Colorado joins the rodeo

More ADA Guidance from the EEOC

As we previously reported here and here, the EEOC offers employers assistance regarding the COVID-19 pandemic and compliance with the Americans with Disabilities Act in its document What You Should Know About COVID-19 and the ADA. The agency has lately added more questions and answers to the guidance. In short, all the usual ADA rules and requirements continue to apply but they may take on a new hue in a request related to COVID-19.

Here are some of the key takeaways, but be sure to consult the full document – this is a summary and the EEOC has much more info for you!

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? 4/23/20

Yes. Employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. However, employers should ensure that the tests are accurate and reliable and should still require – to the greatest extent possible – that employees admitted to the workplace observe infection control practices to prevent transmission of the virus. (And see the OSHA segment below.)

D.6. [See also D.5] During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed?  (4/17/20)

Yes, even during COVID days, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee, now and in any ADA case, may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).  

D.7. If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? (4/17/20)

Yes. Employers may choose to forgo or shorten the “interactive process” and grant the request. In addition, employers may wish to set an end date for an accommodation expected to be temporary or approve it on a trial basis. This may be pertinent while awaiting medical documentation in order to allow an accommodation that provides protection due to an employee’s heightened risk due to the pandemic. If circumstances change the employer should consider an extension of a temporary accommodation or whether a different accommodation is needed.

D.10. and D.11. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” or “significant expense during the COVID-19 pandemic? (4/17/20)

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. Examples include increased difficulty due to the pandemic in obtaining special equipment, providing temporary assignments, or removing marginal functions.

As to “significant expense,” the employer can consider sudden loss of some or all of an its income stream because of this pandemic and when current restrictions on an employer’s operations may be lifted. An employer cannot simply reject any accommodation that costs money but must weigh the cost of an accommodation against its current budget and current constraints created by this pandemic. Even under current circumstances, there may be many no-cost or very low-cost accommodations.

If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems. 

D.12. Does the ADA apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC?

Yes. All employees continue to be covered under the ADA and employers must consider accommodation requests during the pandemic, engage in the interactive process, and provide an effective reasonable accommodation if it doesn’t pose an undue hardship.

Coronavirus Goes to Court

The first known COVID-19 lawsuit has hit the courts! (Can a Movie-of-the-Week be far behind?) Plaintiff Amy Reggio lives in Dallas County, TX. According to the complaint, Dallas County Judge Clay Jenkins, who is in charge of Dallas County’s coronavirus response, issued orders requiring all individuals anywhere in Dallas County to “shelter in place.” Reggio worked as general counsel for a real estate development and investment firm which, she alleges, is not an “essential business” under the Dallas County stay-at-home order. Reggio informed her boss Mark Tekin of the order and of her inability to leave home and go to work as a result. Reggio told Tekin she could perform all of her job duties from home, but claims Tekin said “working from home did not work for him and it would not be allowed or considered.” Reggio explained to Tekin that if she violated the Dallas County order she could be subject to criminal prosecution, including imprisonment. Tekin terminated Reggio on March 27 when she continued to refuse to violate the Dallas County order and go to work.

Reggio’s claim is based on a legal theory known as “public policy wrongful discharge.” An employee may assert this claim when (1) her employer required her to commit an illegal act that carries criminal penalties; (2) the employee refused to engage in the illegality; (3) the employee was discharged by employer; and (4) the sole reason for the employee’s discharge was her refusal to commit the unlawful act. Reggio’s allegations check all four of these boxes, so game on! She is asking for $1 million in damages, include lost wages and benefits, other compensatory damages, and punitive damages. It’s very early yet in this litigation but my bets are on Reggio and a quick settlement – although probably not a million bucks.

The case is Reggio v. Tekin & Assoc., LLC (Dallas County Court, Texas No. CC-20-01986 B).

Lessons for employers. These tough times call for new ways of doing things. Employers need to be flexible and approach difficult situations with an open mind. Remember, special measures imposed as a result of COVID-19 are temporary, so allowing something that is not usually done can also be temporary. This was not a situation where the employee, on her own, decided not to go to work because she was uncomfortable or concerned about being exposed to the virus. In that case the employer might be able to require the employee come to work, but it needs to take appropriate measures in the workplace to ensure a safe environment – and for that issue, read on!

OSHA, COVID-19, and the Employer’s Obligation to Provide a Safe Workplace

As we look forward to a return to the usual workplace and routines, understanding an employer’s OSHA obligations with respect to COVID-19 is especially important. Employers are required to provide a safe workplace and appropriate safety equipment for workers. Employers outside of a manufacturing, processing, or other heavy industry may not regularly think about OSHA requirements. The occasional office paper cut just doesn’t stir much concern.

But now we are in COVID-land. The federal Occupational Safety and Health Administration administers laws that regulate worker safety, which will take on new significance as employees go back to the office. Two provisions of the Occupational Safety and Health Act are particularly applicable to COVID-19 in the workplace:

The General Duty Clause, Section 5(a)(1) requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

OSHA’s Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), requires using gloves, eye and face protection, and respiratory protection when job hazards warrant it.

So, new measures like spacing of desks, ample supplies of hand sanitizers and wipes, and limitations on use of common spaces and facilities may become necessary to fulfill an employer’s OSHA obligations. OSHA recently issued a booklet, Guidance on Preparing Workplaces for COVID-19. Recommendations include the now-familiar handwashing and covering coughs and sneezes, but also an important reminder that employees should not use each other’s workspace, telephone, and other work tools and equipment. You can find more information at the OSHA COVID-19 website, and there are loads of on line resources with ideas.  

In addition, states may have their own workplace safety laws and regulations. There are twenty-eight OSHA-approved State Plans, operating state-wide occupational safety and health programs. State Plans are required to have standards and enforcement programs that are at least as effective as OSHA’s and may have different or more stringent requirements.

In these days of increasing work from home, there is one bit of good news: OSHA will not conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees. For more information see OSHA’s Directive on Home-Based Worksites.

As we move toward returning employees to the workplace, employers should develop a plan for what that will look like. Just be safe and be smart.

COVID in the City

OK, that doesn’t have the same ring as that TV show title – and it’s not nearly as much fun. Still, several cities are making news with their very own COVID-19 leave of absence laws. California seems to be the hotbed of such activity (Who saw that coming?). These COVID-19 ordinances vary by city (of course) but most have some common features:

  • Employer coverage picks up where FFCRA left off – most apply to employers with 500 or more employees.
  • Leave reasons mimic FFCRA, although some add new leave reasons as well, such as closure of a family
    member’s senior care facility or if the employee is age 65 or older or has an underlying high-risk
    health condition
  • Amount of paid sick leave also mimics FFCRA, with 80 hours of paid leave for full-time employees and
    the equivalent of two weeks’ pay for part-time employees, often capped at $511 per day or $5,110
    total per employee.
  • Health care workers are often exempted, at least as to leave for any reason other than their own
    COVID-19 diagnosis or quarantine.

San Francisco’s Public Health Emergency Leave Ordinance is in effect from April 17 through June 16, expiring on June 17, 2020 or when the Public Health Emergency is terminated, whichever is first.  Guidance from the Office of Labor Standards Enforcement is available here.

Los Angeles’s ordinance for Supplemental Paid Sick Leave has been superseded by an Emergency Order signed by Mayor Garcetti, cutting back on the scope of the ordinance. The Emergency Order will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

San Jose’s Urgency Ordinance providing temporary paid sick leave for COVID-19-related reasons is in effect from April 7 through December 31, 2020. Guidance and additional resources from the San Jose Office of Equality are available here.

Remember that many municipalities (and states) have existing paid sick leave laws that are likely to cover a variety of COVID-related needs for time off. My go-to resource is A Better Balance for a chart of paid sick leave laws across the country.

Colorado Joins the Rodeo

Colorado originally passed its Health Emergency Leave with Pay (Nominee for Best Acronym in a COVID-related program: HELP) rules on March 11 but has since significantly increased the scope of industries covered and the duration of paid leave. The rules are effective for 30 days after adoption (presently through May 27) or the duration of the State of Disaster Emergency declare by the Colorado governor, but with a maximum of 120 days after April 27. Including amendments adopted through April 27, here’s what the rules now provide:

All employees of a covered industry and working in a covered position are eligible for HELP. (Heehee, that totally works in a sentence! Good job, Colorado!)

Covered employers include those engaged in, or employing workers in, numerous industries, with no employer size limitations (coverage was effective as of March 11 unless a different date is indicated). Examples: leisure and hospitality, retail, real estate, office work, elective health services, personal care services, food and beverage manufacturing and services, education, and various elder or community care services. For details see the Colorado HELP website.

Paid leave is available for up to two weeks, with a maximum of 80 hours. Pay is at 2/3 of the employee’s usual rate, with no dollar caps. Paid sick leave ends following certain periods of being symptom free.

HELP provides leave for only one reason, to an employee:

  • with flu-like or respiratory illness symptoms and
  • who is (1) being tested for COVID-19 or (2) under instructions from a health care provider or
    authorized government official to quarantine or isolate due to a risk of having COVID-19.
A employer who already provides as much paid sick leave as required by the rules is excused from compliance. An employer who provides less paid sick leave than required by the rules must provide additional paid sick leave up to the amount required by HELP.

However, if an employee has exhausted all paid sick leave allotted by the employer, then the employer must provide additional paid sick leave up to the amount required by HELP.

The employer can require documentation to support the leave but with certain limitations:

  • Documentation can be required only after the employee’s return from leave, not as a precondition
    of taking or remaining on leave. An employee may not be terminated for failure to provide
    documentation during the illness.
  • If documentation is not available from a health care provider or the provider of the employee’s
    COVID-19 test, the employer must accept a written statement from the employee providing the
    pertinent information.

In an odd provision that is likely to give small employers heartburn, the rules provide, “To the extent feasible, employees and employers should comply with the procedures of the federal Family [and] Medical Leave Act (“FMLA”) to pursue and provide paid sick leave under these rules . . . ” This leaves a whole lot of open range as to exactly what that means and to what extent it is mandatory.

Employees must provide advance notice of the need for leave as soon as possible, unless they are too ill to communicate, and notice within 24 hours of getting a COVID-19 test or receiving instructions to quarantine or isolate.

Additional information is available on the Colorado HELP website.

Just When You Thought It was Safe: COVID Webinar II: The Revenge

Hopefully you joined my Reliance Standard colleague Karen Joseph a couple weeks ago for our webinar on COVID related federal and state leave legislation and how to apply it. If you didn’t, or even if you did and you want to prepare for the follow-up, you can access the slides as well as the recording. And while it’s no Season 3 of Ozark, I would say it’s required if you want to join us for the sequel:

On Thursday, May 7 at 2 PM Eastern, Karen and I will get back in that saddle and peel back some of these new developments at the national (OSHA), state and even local levels – plus we’ll incorporate some of your awesome questions from the first round. Plan to attend! Click here to register. Once you see the screen pop up with your name, go ahead and close the box: We will email you a confirmation before the event. (If you don’t get your email confirmation, note the date and time, because the link to join is the same as the registration link.)

See you there!

WRANGLING ALL THE COVID-19 NEWS – THE LATEST ROUNDUP

Posted On April 28, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Armando Rodriguez - Law Clerk, Compliance And Legal Department

April 28, 2020

 

Cowboy Radar

As we all work to acclimate to the new normal that is the current COVID-19 world, state, local, and federal governments and agencies have been working tirelessly to respond to this unprecedented situation. Although we hope things will settle down soon, we have seen more developments in just the last few days.

Well don’t fret none, pardner: We’ve lassoed the most important news for you, which we will provide in two parts. Here is our roundup for today:

  • More DOL Questions and Answers on the FFCRA
  • USERRA and COVID-19-related military service
  • California’s Executive Order providing paid sick leave to food
    sector workers
  • Washington’s Proclamation requiring accommodations for
    employee in COVID-19 high-risk categories

Saddle up and hold on – here we go!

More DOL FFCRA Questions & Answers. Every few days the DOL adds to its Questions & Answers addressing numerous issues employers face in trying to comply with the Families First Coronavirus Response Act. The latest release includes new Questions 80-88. Most of these (Questions 80-85) address how an employer is to calculate an employee’s hours worked and rate of pay, both crucial to determine the appropriate benefits payable to the employee. Various pay scenarios are addressed (e.g., salaried, hourly, variable hours). One answer with good news (85) explains that an employee’s rate of pay, which must be calculated based on pay over the prior six months, must only be calculated at the time of the employee’s first FFCRA leave usage, even if the employee uses the benefit intermittently over multiple weeks or months.

Our personal favorite question is 87, which addresses whether stay-at-home and shelter-in-place orders qualify as quarantine or isolation orders to entitle an employee to take leave under the FFCRA for reasons relating to one of those orders. (See also Question 60.) The answer is YES. To illustrate, the DOL provides the example of an employee who was on a cruise ship on which there was an outbreak of COVID-19 and then must be quarantined for 14 days after getting FINALLY disembarking, even though the employer has work for the employee.

A common challenge for employers is understanding when they can require an employee to use other paid leave benefits and when the employee gets to choose. Question 86 addresses this (as well as prior Questions 31-33). This gets complex so if you are struggling with this issue please read Question 86 in full. That said, here’s a quick summary:

  • Paid sick leave under the Emergency Paid Sick Leave Act (EPSL) is in addition to any form of paid
    or unpaid leave provided by an employer, law, or an applicable collective bargaining agreement.
    An employer may not require employer-provided paid leave to run concurrently with – that is, cover
    the same hours as – paid sick leave under the EPSLA.
  • If the employer and employee agree, an employer may supplement 2/3 pay under the Emergency
    Family and Medical Leave Expansion Act (EFMLA) with other paid leave benefits so that the employee
    may receive the employee’s normal compensation.
  • Under EFMLA, an employer may require any paid leave available to an employee under the employer’s
    policies that would also cover the EFMLA school closure leave reason (either specifically or generally)
    to run concurrently with paid leave under EFML. The employer can top off the employee’s 2/3 pay to
    full pay until the employee has exhausted available paid leave under the employer’s plan—including
    vacation and/or personal leave (typically not sick or medical leave).
  • In both cases (topping off EPSLA and EFMLA 2/3 pay), the employer may only obtain tax credits for
    wages paid at 2/3 of the employee’s regular rate of pay, up to the daily and aggregate EPSLA or EFML limits.
  • An employee may elect—but may not be required by the employer—to take any available paid sick leave
    under the EPSLA or paid leave under the employer’s plan for the first two weeks of unpaid EFMLA, but not both.
  • If an employee has used some or all paid sick leave under the EPSLA, any remaining portion of that
    employee’s first two weeks of EFMLA may be unpaid, or the employee may choose—but the employer
    may not require the employee—to use other paid leave available for the reasons under the employer’s policies.

The last new Question (88) warns employers that if the employer fails to pay an employee in accordance with the requirements of FFCRA, the employee can recover the full amount of wages that should have been paid under the FFCRA. What am I missing here? Pay me the amount owed as I take leave, or pay me the same amount later? Here’s the thing – once the DOL decides to investigate an employer for noncompliance with ANY of the laws under its jurisdiction the DOL has authority to investigate the employer’s compliance with pretty much everything it is responsible for (including FFCRA and FMLA and the Fair Labor Standards Act). You don’t want that. So not only is paying the wages as they are due under the FFCRA the right thing to do, it is also the prudent thing to do. And I’m not a wage & hour attorney, but I’ll bet there may be other things lurking, like paying interest and the employee’s attorneys’ fees.

We’ll be watching for more DOL FFCRA questions and answers – I have it on good authority the staff is working round the clock and I just in person submitted an unanswered question to my sources at the DOL today!

 

California Executive Order Protecting Food Sector Workers

On April 16, California Governor Gavin Newsom issued an Executive Order mandating a supplemental paid sick leave related to COVID-19 to “Food Sector” workers employed by employers with 500 or more workers. The Order covers a wide spectrum of workers under the title “Food Sector Worker” ultimately including everything from agricultural workers to food manufacturing, stopping just shy of food wholesalers and distributors. Specifically, the Order provides sick leave in the following limited instances:

  • When a worker is unable to work due to federal, state, or local quarantine or isolation orders due
    to COVID-19;
  • When the worker is advised to self-quarantine or self-isolate by a health care provider due to
    COVID-19 related concerns; or
  • When the worker is sent home by the employer over concerns of possible COVID-19 transmission.


Workers who are scheduled for 40 hours a week, or who have worked 40 hours per week in the two weeks prior to taking the leave, are eligible for 80 hours of leave, while workers who do not
work 40 hours are eligible for a prorated leave based on average hours worked over the past 6 months. The rate of pay matches the emergency paid sick leave provisions of the Families First Coronavirus Response Act (FFCRA), with caps of $511 per day and $5,110 in total per employee.

The Executive Order is in effect from April 16 for the duration of any state-wide stay-at-home orders issued by the State Public Health Officer. A Food Sector Worker who has commenced the supplemental paid sick leave prior to the termination of all stay-at-home orders may complete the necessary leave.

 

Washington State Proclamation Protecting High-Risk Workers

On April 13, Washington Governor Jay Inslee issued a COVID-19-related Proclamation regarding workers at high risk, as defined by the Centers for Disease Control and Prevention. Specifically, the Proclamation protects employees who are at a heightened risk for complications with COVID-19, as defined by the CDC, by prohibiting all employers from failing to provide accommodations to high-risk employees. In essence, this proclamation provides ADA-esque protection to those who meet the CDC definition of being high risk for COVID-19, such as age 65 or older and having serious health conditions. Employers must first try to keep high risk employees working by providing alternative work assignments, including but not limited to telework or remote work locations, when possible. If alternative work assignments are not possible, the employer must allow the employee to take leave as an accommodation, free from risk of adverse employment action, using any accrued leave, or, if exhausted, unemployment insurance at the discretion of the employee. Additionally, should the employee exhaust paid leave while on an accommodated leave, the employer must maintain employer-provided health benefits until the employee is deemed eligible to return to work.

The Proclamation is in effect from April 13 through June 12, 2020, unless extended.

 

DOL Guidance Regarding Reemployment of Service Members under USERRA

The Department of Labor released a COVID-19-specific fact sheet with regard to the Uniformed Services Employment and Reemployment Rights Act. This fact sheet does not create new rights or obligations under USERRA; rather it addresses specific scenarios to ensure uniform application of USERRA in the context of the pandemic. The fact sheet provides the following important information:

  • National Guard members or Reservists called to duty under federal authority are covered
    under USERRA.
  • National Guard members called to duty under state authority are not covered under USERRA.
    That being said, the service member may be entitled to protection under similar state statutes.
    In addition, authority over National Guard members called to duty may shift from state authority
    to federal authority depending on circumstances.
  • Service members can be furloughed or laid off upon return from uniformed service if it is reasonably
    certain that the service member would have been furloughed or laid off even if he or she had not
    been absent for uniformed service.
  • An employer cannot delay reemploying a service member due to concerns that the service member
    had been deployed to a COVID-19 high risk area. When reemploying an infected or potentially exposed
    service member, an employer must make reasonable efforts in order to qualify the returning employee
    for his or her proper reemployment position. This can include temporarily providing paid leave, remote
    work, or another position during a period of quarantine before placing the individual in his or her
    proper reemployment position.

For more information on the details of National Guard service, see National Guard Assists Response to the COVID-19 Pandemic published by the National Conference of State Legislatures.

Next Up

Rest up, y’all – here is what we have in store for you after the break:

  • More ADA guidance from the EEOC – yes, they really have new stuff to say
  • OSHA – employer obligations to provide a safe workplace
  • COVID-19 lawsuits – here they come!
  • Cityscape – what are municipalities doing?

And watch for your personal invite to our next webinar, where we will dig into all this good stuff!

Welcome

With this blog post we welcome a new contributor, Armando Rodriguez.  Armando has been with Matrix Absence Management since 2017 and previously served as a Claims Examiner Supervisor.  We are delighted to welcome Armando to the Compliance & Legal team as he finishes law school and moves toward a legal career.  Armando’s experience in Operations as an examiner and supervisor makes him uniquely qualified to provide realistic compliance guidance to Matrix, our clients and all of you!

CORONAVIRUS UPDATES DU JOUR: SENATE PASSES AND PRESIDENT SIGNS FMLA EXPANSION AND PAID SICK LEAVE; STATE PAID LEAVE LAWS – WHEN & HOW DO THEY APPLY?

Posted On March 19, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

March 19, 2020

 

The Families First Coronavirus Response Act

In the past two days we have reported on the progress of House of Representatives Bill 6201 proposing expansions of the Family and Medical Leave Act and new paid sick leave requirements here and the House amendments here (or if you widely bookmarked Matrix-Radar, just scroll down!).  On March 18 that bill passed the U.S. Senate and was signed into law by President Trump.  The final version was unchanged from H.R. 6201, so our summary in those two blog posts is still accurate – read them both, and we will follow up soon with more details. In the meantime, remember it goes into effect April 2, 2020; and still impacts only employers with fewer than 500 employees.

Moving on:

State Paid Family and Medical/Disability Laws

Now let’s take a look at how existing or recently-modified state leave laws (paid and unpaid) relate to COVID-19 situations.  NOTE!  This is a very fluid and fast changing situation.  This information is accurate as of press time. We will update this post as needed for new developments.

This overview relates primarily to state paid family and medical or disability benefits and leave laws.  Many states also have paid sick and safe leave laws, and a good number of those cover employee absences due to the closure of schools and day care facilities. In addition, some situations where an employee is ordered by the employer to stay home, or experiences reduced hours or a business closure, may be covered by state unemployment insurance. These are mentioned below only if the state COVID-19 information website specifically addresses the issue. 

A Better Balance is a great resource for state and municipal/county paid sick leave laws.  Check out their website for a comprehensive chart.

California.  The Golden State has taken several steps to provide or clarify state benefits coverage to situations relating to COVID-19:

  • Disability and employee quarantine: An employee may qualify for disability insurance due to their own
    illness and/or quarantine. “Disability” is defined by California statute to include inability to work due to
    a nonwork illness or injury and also “because of a written order from a state or local health officer to an
    individual infected with, or suspected of being infected with, a communicable disease.”
    CA Unemp Ins Code § 2626 (2017).

The Employment Development Department is waiving the one-week elimination period for DI claims for individuals who are unemployed and disabled as a result of COVID-19.  See Governor’s Executive Order. So far this does not appear to apply to voluntary plans. EDD still requires a medical certification signed by a treating physician or a practitioner that includes a diagnosis and ICD-10 code, or if no diagnosis has been obtained, a statement of symptoms; the start date of the condition; its probable duration; and the treating physician’s or practitioner’s license number or facility information. This requirement can also be met by a written order from a state or local health officer that is specific to the employee.

  • Paid Family Leave: Employees missing work to care for an ill or quarantined family member with COVID-19
    may qualify for paid family leave (presently up to 6 weeks, increasing to 8 weeks on July 1, 2020).
    “Family member” is defined as a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling,
    spouse, or registered domestic partner. EDD still requires a medical certification for the family member
    from a treating physician or a practitioner that includes a diagnosis and ICD-10 code, or if no diagnosis
    has been obtained, a statement with the same information listed above for disabilities. This requirement
    can also be met by a written order from a state or local health officer that is specific to the family member’s
    situation.
  • School Closures: If an employee has to miss work because their child’s school is closed, they may be eligible
    for Unemployment Insurance benefits. Eligibility considerations include if the employee has no other
    care options and if they are unable to continue working normal hours remotely.
  • Work closures or reduced hours: Again, unemployment benefits may be available to employees if the
    employer closes its business or reduces work hours. In these cases the employee is not required to actively
    look for other employment but must be ready and available to work throughout the period of
    unemployment or reduced schedule.

California EDD COVID-19 website:  https://edd.ca.gov/about_edd/coronavirus-2019.htm

New Jersey:

  • Disability and employee quarantine: The state’s Temporary Disability Insurance will cover an individual who
    has tested positive for COVID-19 or has symptoms and is unable to work.  The employee must first exhaust
    their leave available under New Jersey’s Earned Sick Leave law, which provides up to 40 hours of paid sick time.
    The employee must still provide the usual medical support from a health care provider, including diagnosis
    and duration the employee is expected to be off work. New Jersey TDI does not cover employee quarantine
    situations.
  • Paid Family Leave: New Jersey Family Leave Insurance (FLI) will apply to employee time off needed to care
    for a family member with a serious health condition. There are no provisions relating to caring for a family
    member due to a COVID-19-related quarantine.
  • School closures: Employee absences due to school or day care closures are not covered under New Jersey FLI.
    New Jersey’s Earned Sick Leave law provides paid sick time (up to 40 hours) that employees can use when their
    children’s school or child care facility is closed due to an epidemic or public health emergency.
  • Work closures or reduced hours: Unemployment benefits may be available to employees if the employer
    closes its business or reduces work hours.

New Jersey COVID-19 website:  https://www.nj.gov/labor/worker-protections/earnedsick/covid.shtml

New York

NOTE:  On March 18, 2020, Governor Cuomo signed emergency legislation guaranteeing job protection and pay for New Yorkers who have been quarantined as a result of novel coronavirus, or COVID-19. Here are the specifics: 

  • Employers are required to provide sick leave for absences due to a COVID-19-related quarantine ordered
    by the state or an authorized state or local department or board of health, according to the employer’s
    size and net income:

    • Employers with 10 or fewer employees: unpaid leave for the duration of the quarantine.
    • Employers with 10 or fewer employees and net income greater than $1 million: 5 days of paid leave,
      plus unpaid leave for the duration of the quarantine.
    • Employers with 11-99 employees: 5 days of paid leave, plus unpaid leave for the duration of the
      quarantine.
    • Employers with 100 or more employees: 14 days of paid leave (no reference to unpaid leave for
      the duration of a quarantine).
  • The employee can apply for New York disability and paid family leave (PFL) benefits after using the mandated
    paid leave. The waiting period is waived for employees of employers with 10 or fewer employees and $1 million
    or less in net income.
  • This paid sick leave must be provided without loss of an employee’s other accrued sick leave.
  • The definition of “disability” for purposes of disability benefits is expanded to include the inability of the
    employee to perform the duties of his/her position or other offered position due to an order of quarantine
    relating to COVID-19, after exhaustion of the paid sick leave (PSL) offered by the employer (presumably
    including company-offered PSL and the newly mandated PSL).
  • Paid family leave is expanded to include leave taken by an employee subject to an order of quarantine relating
    to COVID-19 applicable to the employee or to the employee’s minor dependent child.
  • Benefits available under the disability law and paid family leave run concurrently, with the PFL benefits
    being primary.
  • The amount of benefits available for COVID-19-related disability is a maximum of $2,043.92 per week, and
    for COVID-19-related PFL is a maximum of $840.70 per week. After application of PFL benefits, the amount
    of disability benefits is capped so that the employee does not receive in total more than the employee’s
    average weekly wage.
  • If the federal government provides sick leave and/or employee benefits for employees related to COVID-19,
    then the federal benefits apply first and the state benefits described above serve as a top-off up to the
    limits provide by the New York bill.
  • The employee must be restored to his/her position held prior to the quarantine (so, same position, not
    an equivalent position
    ).

Rhode Island:

  • Disability and employee quarantine: Employee COVID-19-related illnesses may be covered by Rhode Island
    Temporary Disability Insurance (TDI).  The Rhode Island Department of Labor and Training (DLT) will waive
    the 7-day minimum claim duration so employees can get coverage from their first day of COVID-19 illness.

By its terms TDI does not to apply to an employee under quarantine but not actually diagnosed with COVID-19 or exhibiting symptoms. However, the Rhode Island COVID-19 Workplace Fact Sheet provides this statement:  “For individuals under quarantine, DLT will waive the required medical certification, and instead will allow them to temporary qualify via self-attestation that they were under quarantine due to COVID-19.”  This appears intended only to waive the medical certification requirement if someone is quarantined, not to create new TDI coverage.

  • Paid Family Leave: Rhode Island Temporary Caregivers Insurance (TCI) provides 4 weeks of time off to care
    for a seriously ill family member (child, parent, spouse, domestic partner, parent-in-law, or grandparent).
    There is no TCI coverage because a family member is in quarantine.
  • School closures: Employee absences due to school or day care closures are not covered under Rhode Island TCI.
  • Work closures or reduced hours: If a workplace closes or an employee is directed by the employer to remain
    home, the employee may be eligible for unemployment insurance.

Rhode Island COVID-19 Workplace Fact Sheet:  www.dlt.ri.gov/pdfs/COVID-19 Workplace Fact Sheet.pdf

Washington:

  • Disability and employee quarantine: Washington’s new Paid Family and Medical Leave law covers an employee’s
    absence from work due to a serious health condition.  Employees must still provide medical certification of the
    employee’s condition, but this can be obtained via email and the Employment Security Department will accept
    an electronic signature.  An employee’s time off from work due for purposes of quarantine is not covered by
    Washington PFML, but the employee may be eligible for unemployment insurance.
  • Paid Family Leave: Paid family leave is available to care for a family member with COVID-19 if a medical provider
    certifies that it qualifies as a serious health condition.
  • School closures: Employee absences due to school or day care closures are not covered under Washington PFML.
    Unemployment insurance may be available.
  • Work closures or reduced hours: If an employee is laid off work temporarily or if receives reduced hours due to
    a business slowdown or a lack of demand as a result of COVID-19, the employee may be able to receive
    unemployment benefits. If placed on “standby” status the employee does not have to look for another job while
    collecting unemployment benefits as long as certain conditions are met (including performing available telework).

Washington COVID-19 websites abound:

https://esd.wa.gov/newsroom/covid-19

https://paidleave.wa.gov/coronavirus/

easy-to-read comparison guide

https://esd.wa.gov/newsroom/covid-19#forms

 

Are we having fun yet?

Look, let’s get real for a moment. None of us have ever lived through something precisely like this moment in time. Scary? Sure. Complicated? You bet. Changing every sec- oh wait, there it goes again. Changing every second? Yup. Here’s the good news, because we all need some. We will get through this, together. From the Matrix-Radar team, you can be assured we will not take our eyes off the ball and continue to try and help make sense of every new rule and nuance (new-ance?). If you are a Matrix or Reliance Standard client with questions about your leave of absence and disability programs, your account manager will absolutely help – he or she is getting up to speed as we all are. Like you, we are social distancing, work-from-home-ing, loving our families and taking care of business like a boss. Stick with us and stay positive, we will come out stronger, together.