by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,
& Shelby Felton, Esq. - Director and Product Compliance Counsel,
& Armando Rodriguez, Esq - Product Compliance Counsel,
March 08, 2023
President Biden recently announced that effective May 11, 2023, he will end the public health emergency, more than three (3) years after initially declared.
Woo hoo! Or is it, so what? Most mask mandates ended long ago, and over the years (years!) of COVID, recommendations on quarantining and other safety measures have changed repeatedly, often to a lesser standard. Despite its ongoing status as a pandemic, COVID now feels less like an exception (and exceptional) and more like a mundane rule.
Three years in and COVID is still with us... so will any laws change with the end of the declared public health emergency? The President's announcement gives us a prompt to look at the effects, if any, the end of the emergency declaration will have on various laws relating to leaves of absence, disability benefits, paid leave benefits, and accommodations.
Spoiler alert: Few COVID-specific laws are still in effect but many leave and benefits laws have continued applicability if an employee or family member is incapacitated by COVID exposure or infection – particularly those governing your employees' attendance and pay benefits. Probably more than you realize.
Here is a high-level review:
FMLA and State Job-Protected Leave Laws
As you know (don't you, by now?), the federal Family and Medical Leave Act (FMLA) provides up to 12 weeks per year of job-protected but unpaid leave for various reasons, including the serious health condition of the employee or a family member. In addition, about 10 states have FMLA-like job-protected but unpaid leave laws separate from paid family and medical leave laws (see next topic). These laws are not COVID-specific but will continue to cover an employee's absence due to their own or a family member's incapacity resulting from COVID if the statute's definition of serious health condition is met (just like other serious health conditions such as a bad back, depression, cancer, migraines, etc.).
So, no impact here due to the declared end of the national emergency, but continued applicability to COVID.
State Paid Family and Medical Leave Laws
Also, there is no specific impact to the growing list of state laws providing paid disability/medical benefits and/or paid family leave and/or benefits (PFML laws). As with the unpaid laws discussed above, paid time off for the employee's or a family member's medical incapacity might be based on a COVID condition, but only if the condition satisfies the particular statute's definition of a covered health condition.
YOUR PFML RESOURCE
The increasing number and array of state-mandated paid disability, medical, and family leaves is an ongoing challenge. We want to take a moment here to remind you of the Reliance Matrix statutory plans resource available to you, which summarizes all state paid leave programs enacted to date and is updated frequently. Statutory Disability and Paid Family Leave Laws | Reliance Matrix.
Federal COVID-Specific Laws
In 2020, the FMLA was briefly expanded under the Families First Coronavirus Response Act (FFCRA) for employers with fewer than 500 employees, permitting leave to care for a minor child whose school or daycare was closed due to COVID. The FFCRA also included the Emergency Paid Sick Leave Act which provided paid leave benefits for up to 80 hours of missed work due to 6 reasons, including employee and family member quarantine and incapacity due to COVID.
These laws have long-since expired (on December 31, 2020, to be exact), as has a short-term band-aid allowing employers who voluntarily provided paid leave through March 31, 2021, to receive a payroll tax credit for paid sick and family leave.
State and Local COVID-Specific Laws
Many states and local governments passed new leave laws during the pandemic. These laws varied widely including some tied specifically to COVID-19 and others with more general applicability to a "public health emergency." Here are a few examples:
New York: New York signed legislation into law in March 2020 requiring job-protected paid leave to workers subject to a mandatory or precautionary order of quarantine or isolation for COVID-19 and unable to work from home, or whose minor dependent child was under such an order. That law is still in place today. The amount of leave is based on employer size.
California: California's Supplemental Paid Sick Leave, which initially started as a gap filler for the FFCRA , provided job-protected paid leave to workers subject to or caring for an eligible family member subject to a mandatory or precautionary order to quarantine or isolate due to COVID-19 (including school/daycare shut downs and vaccination appointments or vaccine-related complications) and unable to work from home. California's requirements applied to employers with more than 25 employees, with the amount of available paid leave dependent on an eligible employee's work hours. The law was effective March 19, 2021 through December 31, 2022.
California officially ended their State of Emergency on February 28, 2023.
Colorado: Since 2021, Colorado's Healthy Families and Workplaces Act has required that employers provide employees with 80 hours of public health emergency leave ("CPHE") when such an emergency is declared by federal, state, or local authorities. An employee may use CPHE sick leave until four weeks after the official termination or suspension of the public health emergency. The Colorado Department of Labor confirmed that CPHE applied to COVID-19 even though that public health order existed prior to CPHE. As of the date of this blog, Colorado is still under a "disaster emergency" related to COVID-19 and, therefore, unless that executive order expires on or before May 11, 2023 with the COVID-19 federal public health emergency order, Colorado employees may still be entitled to CPHE leave for COVID-19.
Maine: Maine was on top of the issue long before COVID-19. In 2005, Maine passed a leave law for persons affected by an "extreme public health emergency" declared by the Department of Health and Human Services or the Governor. However, the law began and continues to be very non-specific, requiring that an employer grant a "reasonable and necessary" amount of paid or unpaid leave when an employee is unable to work because of the emergency.
Maine ended its COVID-19-related declared emergency as of June 30, 2021, ending COVID-19-based leave as of that date.
Minnesota: Minnesota passed a law providing leave for up to 21 consecutive work days when an employee or family member is in isolation or quarantine due to certain official or court orders. This is not a COVID-specific leave but applies to any covered order of isolation or quarantine.
State and Local Paid Sick Leave Laws
Moving on to laws that entitle employees to accrue paid sick leave based on the number of hours worked – commonly, an hour of paid sick leave for every 30 or 40 hours worked for the employer – dozens of states, counties, and cities now have these laws and the number continues to grow. These are general laws designed for broad and continuing coverage, not as a specific reaction to the COVID pandemic. A helpful resource for checking out the laws applicable to your business locations is the website, Paid Sick Time Laws Archive - A Better Balance.
ERISA Disability Claims
The Employee Retirement Income Security Act (ERISA) governs employers' disability benefits plans, among other things. ERISA was amended temporarily in the early COVID days to provide extensions for claimants to file an initial claim for disability benefits and to appeal an adverse benefit determination under a covered plan. These filing deadline extensions remain in effect until 60 days after the pandemic is declared over. If our math is correct, with the pandemic declared over as of May 11, the deadline extensions will end July 10, 2023.
Here is a link to a blog we posted back when the ERISA amendments went into effect, providing a summary: https://www.matrix-radar.com/blogs/2020/05/still-wrangling-covid-19-news-erisa-ada-ffcra-and-ny. (If you take a look at our examples in that post, you'll see we optimistically used April 20, 2020, as a potential date for the declared end of the pandemic. So naive!)
Americans with Disabilities Act
What can we say? The ADA is still the ADA and employers still have to provide reasonable accommodations to qualified individuals with disabilities. How COVID relates to or affects that obligation is explored at length in this following document from the EEOC: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov). This resource includes topics like whether the ADA requires employers to provide an accommodation to avoid COVID exposure or during quarantine, what medical information an employer can require, and special issues with teleworking.
We Close with Two Disclaimers
After all, we're attorneys!
First, as you can tell, this blog post is intended as an informal, informational summary of leave- and disability-related issues employers may want to be consider as the declared health emergency comes to an end. Many other rights and benefits are affected by President Biden's declaration. Please consult your advisors and other sources for more and broader details that might affect you as an employer (or as a person!).
Second, as always, this post does not constitute legal advice. Please consult your employment law counsel for specific advice relating to your business in your geographic locations.
Reliance Matrix Can Help!
Reliance Matrix is a branding name. Reliance Standard Life Insurance Company (Home Office Schaumburg, IL) is licensed in all states (except New York), the District of Columbia, Puerto Rico, the U.S. Virgin Islands and Guam. First Reliance Standard Life Insurance Company (Home Office New York, NY) is licensed in New York and Delaware. Standard Security Life Insurance Company of New York (Home Office New York, NY) is licensed in all states. Absence services are provided by Matrix Absence Management, Inc. (Home Office Phoenix, AZ). Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services involving the FMLA, state-mandated paid family and medical leave and accommodation solutions. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at email@example.com.