COVID-19 triggers new state and local paid leave benefits, guidance

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Side view of young woman with protective face mask in town, she standing in front at the bus stop and waiting for her transport after work.

To alleviate some of the economic strain on employees unable to work due to COVID-19, some state and local authorities have begun to implement new paid leave requirements. Other jurisdictions are modifying existing leave laws or benefit programs to accommodate employees’ needs during the pandemic. This GRIST provides brief summaries of new state and local paid leave benefits, as well as guidance addressing how current paid leave benefits apply during the COVID-19 pandemic.

Pandemic puts spotlight on paid leave

State and local activity on paid leave issues will continue to evolve. The federal Families First Coronavirus Response Act (FFCRA)’s emergency paid sick and family leave requirements do not preempt any state or local paid leave mandates. Employers will need to watch for guidance from state and local authorities on coordinating the new federal paid leave rights with state and local mandates.

Many states are also taking steps to extend unemployment insurance benefits to workers who are on COVID-19-related unpaid leave, layoff, have reduced work hours or otherwise unable to work while caring for a child whose school or child care is closed due to the pandemic. Some states are also expanding job protections for employees on unpaid leave. A discussion of these state initiatives in response to the pandemic is beyond the scope of this GRIST.

Emergency paid leave benefits

California

Employees unable to work due to COVID-19 may qualify for benefits under the state disability insurance (SDI) or paid family leave (PFL) programs. Both SDI and PFL benefits are approximately 60% to 70% of wages (depending on income) and range from $50 to $1,300 a week:

  • SDI. Gov. Gavin Newsom’s Executive Order N-25-20 authorizes the Employment Development Department (EDD) to waive the seven-day waiting period normally required before claiming SDI benefits for disabilities related to COVID-19. SDI provides up to 52 weeks of partially paid leave for an eligible employee’s own disability. The EDD has confirmed that employees unable to work because of exposure to — or a diagnosis of — COVID-19 (certified by a medical professional) can file a claim for disability benefits.
  • PFL. The state’s PFL program provides up to six weeks of paid leave to care for a seriously ill family member, among other reasons. Employees do not have to complete any waiting period for PFL, which increases to eight weeks for claims beginning on or after July 1. The EDD has confirmed that PFL benefits are available to eligible employees unable to work because they have to care for an ill or quarantined family member due to COVID-19 (if certified by a medical professional).

Los Angeles

The Los Angeles City Council approved an ordinance requiring employers with employees working in the city to provide COVID-19 supplemental paid sick leave (SPSL) to those employed from Feb. 3 through March 4, 2020. The mayor is expected to sign the measure before the April 7 deadline. The ordinance takes effect immediately upon signature and sunsets at the end of 2020 unless the city council extends it.

Ordinance rights and remedies are in addition to and independent of any other rights, remedies and procedures available under any other law except the FFCRA, according to the chief legislative analyst’s report. The goal is to require all employers within the city who are not already providing an additional two weeks of paid leave to employees — in response to COVID-19 — to do so.

Currently, city sick leave regulations require an employer to provide employees with at least 48 hours of paid sick leave or one hour for every 30 hours worked. With the SPSL, a full-time employee (working at least 40 hours per week or so classified) would receive 80 hours of leave based on the employee’s average two-week pay between Feb. 3 and March 4, 2020. Part-time workers receive SPSL in an amount no greater than their average two-week pay over the same period. In all cases, leave pay is capped at $511 per day or $5,110 aggregate per employee. An employer can offset from this requirement any paid leave taken for similar reasons, on or after March 4. Employers of healthcare providers and first responders are exempt from the requirement to provide the SPSL.

SSPL would be available to employees, upon request, who have been required (or recommended) to isolate or self-quarantine to prevent the spread of COVID-19; are at least 65 years old or suffer from a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or a weakened immune system; cannot work because the employer’s business or work location temporarily ceases operations in response to COVID-19; need to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine; need to provide care for a family member whose other care arrangements temporarily cease operations due to the public health emergency. An employer may not require a doctor’s note or other documentation.

San Francisco

Guidance from San Francisco’s Office of Labor Standards Enforcement temporarily expands leave rights and waives documentation requirements under the city’s Paid Sick Leave Ordinance (PSLO). In addition, employers are encouraged to provide an additional five days of paid sick leave — partly funded through the Office of Economic and Workforce Development — beyond current workplace policies.

New paid sick leave rights. The PSLO requires employers to provide at least one hour of paid sick leave for every 30 hours worked to all employees working in the city. Employees may use accrued paid sick leave when they or a family member are ill, injured, receiving medical care (including preventive care) or treatment, are seeking a diagnosis, or are unable to work for other medical reasons. The new guidance requires covered employers to let employees use accrued sick leave to take time off work for any of these additional reasons:

  • The employee has to isolate or quarantine based on recommendations from public health officials or healthcare providers.
  • The employee falls within the definition of a “vulnerable population” under March 6 guidelines or any subsequent updates issued by the San Francisco Department of Public Health. This category includes anyone aged 60 or older or with certain health conditions, such as diabetes, a weakened immune system, or heart, lung or kidney disease.
  • The employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation.
  • The employee needs to provide care for a family member who is not sick but is subject to a public health official’s or healthcare provider’s requirement or recommendation to isolate or quarantine.
  • The employee needs to provide care for a family member whose school, child care provider, senior care provider or work temporarily ceases operations in response to a public health or other public official’s recommendation.

Employers may not require a doctor’s note or other documentation for the use of paid sick leave. These changes are effective only for the duration of the city’s novel coronavirus disease local health emergency.

Additional paid sick leave incentive program. The Workers and Families First Program announced by the mayor offers incentives for businesses to provide an additional five days of sick leave pay to employees. All San Francisco businesses will be eligible, with up to 20% of funds reserved for small businesses with 50 or fewer employees. The city will contribute up to one week (40 hours) at $15.59 per hour (the San Francisco minimum wage), or $623 a week, per employee toward paid sick leave. The employer will pay the difference between the minimum wage and an employee’s full hourly wage. The program is available only if an employee has exhausted available sick leave and is ineligible for or has exhausted federal or state supplemental sick leave, and the employer agrees to extend sick leave beyond current benefits.

Colorado

On March 11, the Colorado Department of Labor and Employment issued Health Emergency Leave with Pay (HELP) rules requiring certain employers to provide paid sick leave for COVID-19 testing. Employers in the leisure, hospitality, food service, child care, education and home healthcare industries must provide up to four calendar days of paid sick leave to an employee with flu-like symptoms who is being tested for COVID-19. Originally, paid sick leave was targeted to end when an employee received a negative COVID-19 test result. HELP rules were amended on March 16 to extend the paid leave to employees in quarantine or isolation, under instruction from a healthcare provider, or due to the risk of having COVID-19. The amended rules include retail establishments that sell groceries. The rules were amended again on April 3 to include the food and beverage manufacturing industry among covered employers.

The rules do not require additional paid leave if an employer’s existing paid leave policy would apply. However, an employee who has exhausted paid leave under the employer’s current policy is entitled to additional four days under the rules.

The amended emergency rules took effect March 16 and expire after 30 days, unless Colorado’s state of disaster emergency remains in effect. In that scenario, the rules will expire when the emergency ends, but no later than 120 days (July 24).

Michigan

Michigan’s Executive Order No. 2020-36 requires individuals who have had close contact with someone who tests positive for COVID-19 or displays one or more of the principal symptoms of COVID-19 to remain home. Employees must be permitted to use any accrued time under the state’s paid sick leave mandate. The order prohibits discharge, discipline, or other retaliation against employees who are staying home due to illness, whose close contacts are sick, or who are at particular risk of infecting others with COVID-19. The Executive Order is in effect until the end of the declared states of emergency and disaster.

Michigan’s Paid Medical Leave Act (PMLA), first effective March 29, 2019, requires covered employers to provide one hour of paid sick leave for every 35 hours worked, up to 40 hours per year. Under the Executive Order, employees ordered to stay home must be treated as if they are taking sick leave under the PMLA. If the employee required to stay home has no paid leave accruals, the leave may be unpaid. Employee leave must extend until: three days after employee’s symptoms resolve; seven days after symptoms first appeared or after testing reveals a COVID-19 diagnosis; or after a negative COVID-19 test result. For employees with potential exposure to the virus, leave must last until either the symptomatic contact receives a negative COVID-19 test or 14 days have passed since the last close contact with a sick or symptomatic individual.

New Jersey

Emergency legislation (AB 3848) prohibits employers in the state from terminating or refusing to reinstate an employee who requests or takes time off from work based on a licensed medical professional’s written recommendation that the employee has, or is likely to have, an infectious disease. The law is effective immediately and continues for the duration of the COVID-19 pandemic and state of emergency declared by the governor in Executive Order 103. Violations could lead to reinstatement orders, fines up to $2,500 per instance and employee-initiated court action.

Another new law (SB 2304) amends New Jersey’s paid sick leave law to allow employees to use accrued sick time during a governor’s state of emergency declaration, extends job protections under the Family Leave Act to employees caring for a seriously ill family member, and expands the definition of a serious health condition under both temporary disability and family leave insurance. The amendments, effective March 25, 2020, are not specific to the COVID-19 pandemic and do not have an expiration date.

Paid sick leave. The paid sick leave laws allows employees to use accrued paid sick leave for public health emergencies that close down their workplace or their child’s school or daycare facility. Employees also can use earned sick leave for self-care or caring for a family member. With the amendments, employees can now also use accrued paid sick leave if the workplace or a child’s school or daycare is closed due to an emergency declaration, or upon the recommendation or order for quarantine or isolation of the employee or a family member that needs to be cared for.

Temporary disability and family leave insurance. Under the amended temporary disability and family leave insurance laws, a serious health condition includes an illness caused by an epidemic of a communicable disease. This extends to known or suspected exposure to, or efforts to prevent spread of the disease, and applies to any provider or government authority recommendation, direction, or order that the individual be isolated or quarantined. Temporary disability insurance may also be available for employees who are at greater risk of contracting COVID-19 or have contracted the virus and are unable to return to work after exhausting accrued paid leave. Family leave insurance may also be available for employees who have exhausted paid leave and need to care for a family member diagnosed with or showing symptoms of COVID-19.

More information can found in the COVID-19 FAQs for employees from New Jersey’s Department of Labor and Workforce Development.

New York

Effective immediately, New York emergency legislation (2020 Ch. 25) provides temporary paid sick leave for employees subject to a mandatory or precautionary quarantine or isolation order due to COVID-19. The law also expands the state’s existing PFL and disability benefit programs to certain employees. New York City’s and Westchester County’s paid sick time mandates are not preempted by the temporary state law entitlements. In addition, PFL (Section 355.9 of Title 12 NYCRR) has been amended on an emergency basis to clarify that employees may take family leave to care for a family member diagnosed with COVID-19. Coordination of New York’s leave benefits with the new federal leave entitlement under the Families First Coronavirus Response Act is complicated.

The emergency law is unrelated to other paid leave legislation (AB 9506-A, Part J) pending in the New York legislature. That measure would require employers to provide up to 56 hours of paid sick leave per year, but prospects for passage are unclear.

Emergency sick leave. The emergency paid sick leave is in addition to any employer-provided paid sick leave already available to employees. The state Department of Labor has authority to issue related guidance. Leave requirements vary by employer size as of Jan. 1, 2020, as follows:

  • Private employers with 100 or more employees and all public employers must provide at least 14 days of paid sick leave.
  • Employers with 11 to 99 employees must provide at least five days of paid sick leave and then grant unpaid leave through the end of the quarantine/isolation period. Employers with up to 10 employees and a net income greater than $1 million are subject to the same requirement.
  • Small employers with up to 10 employees and net income not exceeding $1 million must provide unpaid sick leave for the entire period of quarantine/isolation.

The legislation doesn’t specify how to count the employee population or whether to include only New York workers. Unless otherwise advised, it’s reasonable to conclude that employers should count their entire workforce — including employees outside of New York — to determine how to comply. During the period of quarantine/isolation, employees of employers with fewer than 100 employees are eligible for PFL and disability benefits after exhausting any paid sick days provided under this emergency legislation.

Expanded PFL and disability benefits. For employers with fewer than 100 employees, the expanded PFL entitlement provides benefits to employees unable to work because they are subject to — or have to care for a minor child who is subject to — a mandatory or precautionary quarantine/isolation order. Disability benefits also are available without a waiting period for employees unable to work because of a quarantine or isolation order. Benefits from both programs are available on the first day of unpaid leave and can be received concurrently. A maximum $840.70 PFL benefit is available per week. The weekly benefit available under the emergency disability benefit expansion is the difference between the maximum weekly PFL benefit and the employee’s total average weekly wage, up to a $2,043.92 maximum per week. The expanded benefits under the PFL and disability programs are temporary.

Teleworkers not eligible. An employee who is asymptomatic or has not been diagnosed and is physically able to work while quarantined or isolated is not eligible for the COVID-related paid sick leave or expanded PFL and disability benefits.

Personal travel may affect eligibility. The COVID-19-related paid sick leave and expanded PFL and disability benefits may not be available to employees who are subject to quarantine or isolation orders because of personal travel to a level-two or level-three country as designated by the CDC. If employees had advance notice of the travel limitations, they can use employer-provided accrued paid leave or take unpaid sick leave during the travel-related quarantine/isolation order, but they don’t qualify for benefits under this law.

Job protection. Employees returning to work after COVID-19-related leave must be restored to the position held before the leave, with the same pay and terms and conditions of employment. Discrimination and retaliation against employees who take leave is prohibited.

Quarantine or isolation orders. The COVID-related paid leave and benefits are available to an employee subject to a “mandatory or precautionary order of quarantine or isolation.” This includes any such order related to COVID-19 from the state, the department of health, a local board of health or any authorized government entity. The state has provided guidance to local health departments on when quarantine or isolation orders are appropriate.

Coordination with federal COVID-19 emergency leave benefits. The COVID-related paid sick leave, PFL and disability benefits are only available to the extent they exceed the paid leave required by the federal Families First Coronavirus Response Act. An employee eligible under both laws can claim any additional leave and benefits available under New York’s law that exceed what the federal law allows. Additional guidance from New York on coordinating these various mandates will be welcome. New York private employers with 500 or more employees are not subject to the federal law’s paid leave mandates but do have to comply with New York‘s laws.

More guidance to come. New York regulators have issued guidance in the form of frequently asked questions on the emergency COVID-19 paid sick leave, PFL and disability benefits.

Rhode Island

The Department of Labor and Training issued a workplace fact sheet on COVID-19, reminding workers that they may be eligible for temporary disability or family caregiver insurance benefits if they or a family member have been impacted by COVID-19. The state is waiving the seven-day minimum claim period for COVID-19-related claims and the need for a medical certification if a worker is under quarantine.

Seattle

FAQs from Seattle’s Office of Labor Standards clarify how the city’s Paid Sick and Safe Time Ordinance (PSST) applies for the COVID-19 public emergency and detail the city’s recent amendments. The ordinance requires employers with one or more employees working in the city to provide paid leave to employees to care for themselves or a family member who has a physical or mental health condition, a medical appointment or a critical safety issue. Under the original ordinance, employees also could use accrued paid leave when a public official closes their place of business or their child’s school or place of care for health reasons.

The March 16 amendments require employers to allow accrued paid sick leave if any family member's place of care or school is closed; remove the requirement that the closure occur for a health-related reason subject to a public official’s order; and require employers with 250 or more full-time equivalent employees to allow use of PSST when their place of business is closed for any health or safety reason. The guidance also covers mandatory use of PSST, including for employees returning from a different country; exhausted accruals; paid leave donation; and other issues.

COVID-19 guidance for existing paid leave benefits

Connecticut

The Connecticut Department of Labor has published COVID-19 FAQs for workers and employers that address a number of topics, including the use of accrued paid sick leave during the pandemic. The state’s paid sick leave law requires employers with 50 or more employees to provide up to 40 hours of paid leave per year. Employees can use this paid leave for their own or a child’s or spouse’s illness or medical care. According to the FAQs, which the department plans to update regularly, paid sick leave will cover certain absences related to COVID-19.

Massachusetts

FAQs from the Massachusetts attorney general clarify employee rights and employer obligations under the state’s existing paid sick leave law in the context of COVID-19. Massachusetts employers are required to provide up to 40 hours of accrued paid sick time each year for employees to use — to take care of themselves or family members, or for a required or recommended quarantine. Current law does not cover instances of school, child care, or work closures due to a public health emergency. Nevertheless, employers are encouraged to allow liberal use of earned sick time — and vacation or paid time off — during the pandemic in order to support full compliance with the recommendations of health professionals. 

Minnesota

Employers with employees in Duluth, Minneapolis or St. Paul are required to provide paid sick leave that can be accrued over time or frontloaded at the start of the year. Specifics differ for each ordinance. The cities of Duluth and Minneapolis have provided new FAQs for employers to clarify how these ordinances apply to COVID-19 related absences.

Duluth FAQs. Employees in Duluth can use accrued paid sick time for coronavirus screening, treatment or care for symptoms or infection, and for testing or quarantine following close personal contact with an infected or symptomatic person. Sick leave can be used by the employee for self-care or to care for a covered family member. The ordinance doesn’t cover use of paid sick time if a family member’s school or place of child care is closed, or if the employee’s workplace is closed by order of a public official due to the virus. However, the FAQ notes that an employer can allow the use of paid sick leave for reasons not covered by the ordinance.

Minneapolis FAQs. Employees in Minneapolis can use accrued sick leave for absences related to coronavirus symptoms, testing or infection. Paid sick time can be used by the employee for self-care, or to care for a family member. Sick time can also be used if a family member’s school or place of child care is closed, or if the employee’s workplace is closed by order of a public official due to the virus. Preemptive closures or self-quarantine are not covered uses under the ordinance.

Though no state law requires employers to provide paid sick leave, a Minnesota Department of Labor fact sheet notes that if paid sick time is provided for an employee’s own illness, it generally must also be allowed for the employee to care for an ill minor child, adult child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent or stepparent.

Nevada

Nevada’s labor commissioner issued COVID-19 guidance for the state’s new paid leave law (2019 Ch. 592). Employers are barred from requiring employees to use accrued paid sick leave if unable to work due to a mandatory government quarantine, but employees can choose to use paid or other applicable leave. Employers can find more information on the labor commission’s website that features links to COVID-19 resources, including a summary of new federal COIVD-19-related paid leave requirements.

Oregon

Oregon’s sick leave law requires employers to provide employees with at least one hour of paid sick time for every 30 hours worked. The state’s Wage and Hour Division has published FAQs for employers and employees about sick time and the coronavirus. Employees can use accrued sick time when a public health emergency closes their place of work, or they have to care for child whose school or child care center has closed due to the public health emergency. Employees also can use paid sick leave for their own illness or to care for an ill family member (including parents, grandparents and grandchildren).

Philadelphia

Philadelphia’s paid sick leave law supplementary regulations, effective for the duration of the COVID-19 public health emergency, allow for expanded use of accrued leave. Employees may use accrued leave to undergo a COVID-19 evaluation and a two-week self-quarantine if they have symptoms of the virus, have had direct contact with an infected individual, or have recently traveled in a high-risk country. Self-quarantine may also apply to employees who are considered high risk by a medical professional.

Additional leave rights extend to caring for family members at home during COVID-19-related closures, such as school or daycare; state-ordered business closure; and applicable travel restrictions. The regulations also detail reasonable documentation employers may require, including public statements from government officials or a signed employee statement of existing symptoms or need to stay home. Employers can’t require a note from a health professional, consistent with guidance from the Centers for Disease Control and Prevention.

Vermont

Vermont’s paid sick time law requires employers to provide up to 40 hours of accrued paid leave every year. COVID-19 FAQs from the state’s Department of Labor remind employers and employees that accrued paid sick leave can be used by employees who have COVID-19 or need to care for a sick family member. Under the law, employees can also use accrued sick time when a family member’s school or business is closed for public health or safety reasons.

Washington

The Department of Labor & Industries has posted answers to common questions on paid sick leave and COVID-19. Employees can use paid sick leave if a public official closes their place of business or their child’s school or place of care due to COVID-19. Employees can also use paid time off for these purposes if paid sick leave is part of the PTO program. However, employers cannot require employees to use to their paid sick leave to cover virus-related absences. The employee can choose when to use accrued paid sick leave.

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Katharine Marshall
by Katharine Marshall

Principal, Mercer’s Law & Policy Group

Catherine Stamm
by Catherine Stamm

Principal, Mercer’s Law & Policy Group

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