Following on the heels of the federal Families First Coronavirus Response Act (FFCRA), many state and local governments have enacted additional sick leave laws that benefit employees of employers not covered by the FFCRA, but who may be impacted by the Coronavirus (COVID-19). Leave requirements under the FFCRA do not necessarily preempt state or local paid leave mandates and are in addition to leave provided under state or local law. Therefore, employers should be on the lookout for specific guidance in their state or local jurisdiction for laws coordinating FFCRA with those mandates. For additional information on the FFCRA and its requirements, please visit our blog post.
While there are many proposals making their way through state and local legislatures, this article highlights select existing sick leave laws that have been expanded or newly enacted in response to COVID-19. Please note that this is not a comprehensive list of all laws that may apply.
San Francisco Workers and Families First Program
Mayor London Breed announced the Workers and Families First Program (Program), which provides paid sick leave for private sector workers impacted by COVID-19. The Program is available pursuant to San Francisco’s Paid Sick Leave Ordinance and the guidance issued by San Francisco’s Office of Labor Standards Enforcement. For more information about the program please visit our blog post.
San Francisco Public Health Emergency Leave Ordinance
The San Francisco Board of Supervisors approved the Public Health Emergency Leave Ordinance (PHELO), requiring private employers with 500 or more employees worldwide to provide public health emergency leave consistent with the FFCRA for the duration of the COVID-19 public health emergency. Once effective, private employers who are not subject to FFCRA because they have more than 500 employees will be subject to nearly identical paid leave requirements. Employers will not receive any tax credits or monetary relief for providing this additional San Francisco based benefit. For more information about PHELO, please visit our blog post.
Los Angeles Supplemental Paid Sick Leave
On April 7, Los Angeles Mayor Garcetti signed into law an order that provides two weeks of paid sick leave to workers of private employers with either 500 or more employees within the City of Los Angeles, or with 2,000* or more employees in the United States, for the following COVID-19-related reasons:
- The employee tests positive for COVID-19 or takes leave because a public health official or healthcare provider requires or recommends that the employee isolate or self-quarantine to prevent the spread of COVID-19;
- The employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
- The employee needs to care for a family member who is not sick but who a public health official or healthcare provider has required or recommended isolation or self-quarantine; or
- The employee needs to provide care for a family member whose senior care provider or school/childcare provider (for children under the age of 18) temporarily ceases operations in response to recommendation from a public or public health official. This provision is only applicable when an employee is unable to secure a reasonable alternative caregiver.
The paid sick leave amount paid to an employee is capped at $511 per day and $5,110 in the aggregate. The mayor’s order is open-ended, lasting until two calendar weeks after the COVID-19 local emergency ends. Employers must provide this sick leave upon an employee’s oral or written request, but the law does not address when employees must provide notice. The law states that employers cannot require a doctor’s note or other documentation for use of this paid sick leave. For additional information about Los Angeles supplemental paid sick leave, please visit our blog post.
*It is currently unclear under the new regulation how to count the total number of employees for these purposes.
Emeryville’s Paid Sick Leave Law
The City of Emeryville has issued guidance that employers in the city “must allow covered employees to use accrued sick leave” in COVID-19-related situations under Emeryville’s Paid Sick Leave Ordinance.
San Jose Emergency Paid Sick Leave Ordinances
On April 7, 2020, the San Jose City Council adopted an ordinance that requires employers not subject to the FFCRA to provide emergency paid sick leave. The ordinance will sunset on December 31, 2020. Employers will not receive any tax credits or monetary relief for providing this additional San Jose based benefit. The Director of the Office of Equality Assurance, charged with enforcement of the ordinance, has also issued guidance and an opinion letter to provide additional information.
On March 12, 2020, the city of Santa Monica issued guidance to employers to comply with Santa Monica’s existing Paid Sick Leave Ordinance during the COVID-19 public health emergency, and reminding businesses of the “need to respect workers’ rights to stay home when sick.” The Santa Monica law requires employers with 25 or fewer employees performing work within the City of Santa Monica to provide a minimum of 40 hours of paid sick leave, and employers with 26 or more employees to provide 72 hours of paid sick leave.
The Colorado Department of Labor and Employment adopted an emergency rule on March 11, 2020, that temporarily requires employers in certain industries to provide up to four consecutive calendar days of paid sick leave to allow sick employees to obtain COVID-19 testing or who are under instruction from a health care provider to quarantine or isolate due to risk of having COVID-19. The rule covers employees in the following industries: leisure and hospitality; retail stores that sell groceries; food and beverage manufacturing; food services; childcare; education; home health; nursing homes; and community living facilities. For additional information, see this FAQ.
New Jersey’s Department of Labor updated its guidance on New Jersey’s Earned Sick Leave Law to specifically permit an employee who tests positive or has symptoms of COVID-19 and is unable to work, to use earned sick leave time.
On March 18, 2020, New York Governor Andrew Cuomo enacted Senate Bill 9081 (New York Emergency Paid Sick Leave) providing immediate job-protected sick leave and assistance to New Yorkers impacted by COVID-19. Employers are now required to provide paid sick leave to any “employee who is subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or governmental entity duly authorized to issue such order to COVID-19.”
An employee eligible for both paid sick leave under the New York Emergency Paid Sick Leave and under the FFCRA may claim additional leave benefits available under the New York law that exceed what the FFCRA allows. In this scenario, the employee is entitled to the federal benefits, plus the difference in benefits available under the New York Emergency Paid Sick Leave.
For additional information please visit our blog post.
New York City
The New York City Department of Consumer and Worker Protection has provided guidance encouraging employers to allow employees additional leave “as needed” for sickness, quarantine, or for other uses related to COVID-19 under New York City’s Paid Safe and Sick Leave Law. New York City has not mandated any additional requirements at this time.
Seattle Paid Sick and Safe Time
On April 8, 2020, the Seattle Office of Labor Standards adopted an emergency rule on practices for administering the Paid Sick and Safe Time Ordinance as it relates to COVID-19. Namely, employers may not require a doctor’s note or healthcare provider verification for an employee’s use of paid sick/safe time, regardless of whether the employee seeks to use the time for COVID-19 related reasons.
On April 10, 2020, the D.C. Mayor signed into law the COVID-19 Response Supplemental Emergency Amendment Act of 2020 (“Amendment”), requiring employers with between 50 and 499 employees in D.C* to provide “declaration of emergency” paid sick leave under D.C.’s Accrued Sick and Safe Leave Act (ASSLA) for any reason employees might take leave under the FFCRA. The law will remain in effect until July 9, 2020. Employers will not receive any tax credits or monetary relief for providing this additional D.C. based benefit.
*While the Amendment itself does not state whether the employee count is based on employees in the United States, or in D.C. only, the ASSLA only applies to employers with employees within D.C. Therefore since the Amendment is to the ASSLA, and unless stated otherwise in subsequent guidance, it follows that the Amendment applies only to employers with between 50 and 400 employees located in D.C.
State and local responses to the pandemic are ongoing and dynamic from day to day. Please note that this is not an exhaustive list of every state and local action with respect to sick leave taken in response to COVID-19. Our compliance team continues to monitor legislation closely and will update this article accordingly as new legislation is released.
The information and materials on this blog are provided for informational purposes only and are not intended to constitute legal or tax advice. Information provided in this blog may not reflect the most current legal developments and may vary by jurisdiction. The content on this blog is for general informational purposes only and does not apply to any particular facts or circumstances. The use of this blog does not in any way establish an attorney-client relationship, nor should any such relationship be implied, and the contents do not constitute legal or tax advice. If you require legal or tax advice, please consult with a licensed attorney or tax professional in your jurisdiction. The contributing authors expressly disclaim all liability to any persons or entities with respect to any action or inaction based on the contents of this blog.