September 11, 2020

Coronavirus (COVID-19) and Leave Updates

A Brief Note

Today, many of us at The Larkin Company shared our still vivid memories of the tragic events of September 11, 2001. We remember where we were and exactly what we were doing in the very moment that we heard of or witnessed the tragic events of that day, 19 years ago. Sharing our collective experiences helps with healing that continues to this day. The difficult days following 9/11 tested us greatly yet left us with many important lessons. 9/11 will always be a day of remembrance and reflection. We will never forget.

Our nation is being tested once again as we fight to cope with the many events that have unfolded this year. On this day, it is important to reflect on the impact that 9/11 has had on our personal lives and our country. We rebuilt a nation on strength and unity following 9/11, and we must continue to do the same as unprecedented challenges persist.

Below is a summary of the most recently released updates from multiple states as well as government agencies. Please let us know if you would like further information or have any questions regarding any of the updates below.

California

Governor Newsom has signed into law AB 1867 which includes a requirement that private employers, with 500 or more employees in the United States, provide supplemental paid sick leave (SPSL) for COVID-19-related reasons.

Reasons for Leave:

The covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
The covered work is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19;
The covered worker is prohibited from working by the covered workers’ hiring entity due to health concerns related to the potential transmission of COVID-19.

Full-time employees are entitled to 80 hours of SPSL while part-time employees are entitled to the number of hours worked over a two-week period. The maximum rate of pay is $511 per day ($5,110 in the aggregate). SPSL must be made available to a covered worker upon oral or written request by the covered worker. If an employer already provides a supplemental benefit or paid leave for the reasons above, then the employer may count the hours of the other paid benefit or leave towards the total number of SPSL leave hours.

Notice to employees will be required, and we will notify you when the Labor Commissioner has made available a model notice for employers to use for this purpose.

The law is retroactive to April 16, 2020 and in effect until December 31, 2020 or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established under the Families First Coronavirus Response Act (FFCRA).

Colorado

You may recall that the Healthy Families and Workplaces Act (HFWA) was enacted in July. Emergency Paid Sick Leave was effective immediately while another facet of the law is effective January 1, 2021. Starting in January, employers with 16 or more employees will be required to provide sick leave. Employees will earn one hour of paid sick leave for every 30 hours worked with a maximum accrual of 48 hours per year. In 2022, all employers will be required to provide sick leave under the HFWA. To refresh your memory on other details of the law, please refer to our July 24, 2020 newsletter. For required notices, please refer to our August 29, 2020 newsletter.

Connecticut

The Connecticut Paid Leave Authority now has a website devoted to the Paid Leave Program that is currently in development. The site has some great information for employees and employers. Employers must register with the Paid Leave Authority and may do so beginning on November 1, 2020. Employers are to begin withholding employee contributions (0.5% payroll tax on gross earnings up to the social security cap, currently projected to be $141,900 for 2021) on January 1, 2021 with the first payment due at the end of the first quarter (payments may also be submitted during the quarter).

Department of Labor (DOL)

In early August, the U.S. District Court for the Southern District of New York struck down four provisions of the FFCRA – see our August 7, 2020 newsletter for further details. Today, the DOL (Wage & Hour Division) has released revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the FFCRA. The revisions will take effect on September 16, 2020 upon publication in the Federal Register. If you can’t wait until next Wednesday to review the official revisions, you may download the unpublished version. The revisions do the following:

Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
Reaffirm and provide additional explanation for the requirement that an employee must have employer approval to take FFCRA leave intermittently.
Revise the definition of “health care provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

Equal Employment Opportunity Commission (EEOC)

The EEOC has once again updated its technical assistant Q&A document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEOC Laws18 new questions & answers have been added and have been adapted from two other EEOC technical assistance resources: Pandemic Preparedness in the Workplace and the Americans with Disabilities Act and a March 27, 2020 EEOC webinar. Two other questions have been updated (A.6 and D.8). The new and updated questions may be found by searching for the date of “9/8/20.”

Maine

We won’t hold it against you if it slipped your mind that last year Maine became the first state to pass legislation requiring employers to provide earned paid leave (not just sick leave) to employees. The time is almost here – in just a few short months, the law will take effect (on January 1, 2021). Private employers who employ 10 or more employees for more than 120 days in a calendar year will be required to provide one hour of paid leave for every 40 hours worked, up to a maximum of 40 hours per year. Eligible employees may use the paid leave for any reason and will receive their normal pay during the leave.

Massachusetts

The Department of Family and Medical Leave has released the final regulations for the new Paid Family and Medical Leave program that begins January 1, 2021. As a reminder, all leaves types will be available except for family care leaves which will be available as of July 1, 2021.

New York

The New York State Sick Leave (NYSSL) law goes into effective September 30, 2020 with employees able to utilize the leave beginning January 1, 2021. Like the COVID-19-related Emergency Paid Sick Leave law passed in March, sick leave entitlement will be based on employer size and income:

Employers with four or fewer employees are required to provide up to 40 hours of unpaid sick leave; if the employer has a net income of greater than one million dollars in the previous tax year, the sick leave is paid;
Employers with between 5 and 99 employees are required to provide up to forty hours of paid sick leave;
Employers with 100 or more employees are required to provide up to 56 hours of paid sick leave.