In addition to the federal government action to provide paid leave to workers impacted by the coronavirus (COVID-19) outbreak, numerous states and local governments have proposed, and in a few cases enacted, additional leave laws that would also benefit impacted workers. These proposals generally expand currently existing sick leave/family leave, add protections for infected or quarantined employees, or, in at least two states, propose entirely new and permanent paid sick leave laws. The descriptions below cover both enacted laws and pending bills.
Under this law, employees subject to a COVID-19 related Quarantine would be provided with paid sick leave in varying increments as follows based on the size of the employer:
Notably, the paid sick leave provided under this law cannot result in the loss of “accrued sick leave” – meaning any existing paid sick leave offered by the employer (pursuant to New York City law or otherwise) cannot run concurrently with paid sick leave under this law.
Second, employees eligible for paid sick leave in any amount will also be eligible for job protection and certain wage replacement benefits for the remainder of any Quarantine not covered by paid sick leave. Specifically, after an employee exhausts their paid sick leave entitlement under this law, the employee can combine and concurrently receive New York Paid Family Leave (NYPFL) and short-term disability (STD) benefits for the remainder of the Quarantine. Additionally, employees can use NYPFL wage replacement benefits (but not paid sick leave or STD benefits) if the employee needs time off to provide care for their minor or dependent child provided the minor or dependent child is subject to a Quarantine. Therefore, the law does not create a leave or wage replacement benefit for parents who need time off to care for a child due to a school closure unless the child is specifically subject to a Quarantine requirement. NYPFL and STD benefits would be payable immediately upon the first day of unpaid leave. Solely for COVID-19-related uses of NYPFL and STD, the maximum benefit will be $840.70 per week in NYPFL benefits and $2,043.92 in STD benefits – constituting wage replacement of up to $150,000.
Importantly, the legislation expressly provides that the benefits would run concurrently with any paid sick leave and/or employee benefits passed by the federal government with respect to COVID-19. If an employee is also eligible for such federal leave or benefits, the employee would only receive additional sick leave and/or benefits under this law in the amount of the difference between the federal benefits and the benefits provided in the legislation (to the extent they exceed federal benefits.)
Finally, provided that the employer informs employees in advance of personal travel, if the employee travels to a country listed as Level 2 or Level 3 on the CDC travel advisory for personal reasons and is subject to a Quarantine upon return, the employee will not be eligible for paid leave or benefits (but would still be eligible for protected unpaid leave).
The bill would allow an employee to take unpaid leave or use paid time off to care for a family member with COVID-19. An employee taking leave could elect a substitution of the employee’s accrued vacation or other time off during the period of absence. However, employees would not be able under the law to use sick leave during a period of leave to care for a family member with COVID-19.
The bill would further require employers to maintain and pay for employee health coverage during the leave period. Employees taking leave under the law would retain their employee status, and the leave would not constitute a break in service.
The law, once enacted, would remain in effect until January 1, 2022.
The legislation would create a private right of action to seek reinstatement and also allow an employee to file a complaint with the New Jersey Commissioner of Labor and Workforce Development. A violation would subject an employer to a $2,500 fine and required reinstatement of the employee.
The law, once enacted, would take effect immediately.
In addition, New Jersey’s Department of Labor recently updated its guidance and specifically permits employees who test positive or have symptoms of COVID-19 and are unable to work to use accrued, unused earned sick leave time under the New Jersey Earned Sick Leave Law.
Covered industries include (1) leisure and hospitality; (2) food services; (3) child care; (4) education (including transportation, food service, and related work with educational establishments); (5) home health (specifically those working with high-risk populations like the elderly); (6) nursing homes; and (7) community living facilities.
The rules do not require an employer to offer additional days of paid sick leave if the employer already offers all employees at least four days of paid leave. However, an employee who has already exhausted his or her paid leave must be allowed to take leave for testing, assuming the employee has flu-like symptoms that warrant a test.
The emergency rule allows the Colorado Department of Labor to bring actions against noncompliant employers.
The bill has no sunset period, even though it is framed as an emergency legislation.
In addition, some cities have expanded paid sick leave protections to include more workers.
The program is available only to employees who have exhausted their currently available sick leave and are not eligible for supplemental federal or state sick leave, and the employer agrees to extend sick leave beyond current benefits.
All San Francisco businesses are eligible to receive funding, with up to 20% of funds reserved for small businesses with 50 or fewer employees. The city will contribute up to one week at $15.59 per hour per employee (the current city minimum wage) or $623 per employee. The employer will pay the difference between the minimum wage and the employee’s full wage.
On a broader level, California’s Department of Industrial Relations clarified that employers cannot require quarantined employees to use paid accrued sick leave, but employees may choose to do so.
Philadelphia’s current paid sick leave law allows eligible employees to earn one hour of sick time for every 40 hours worked, with a maximum of 40 sick time hours earned in a calendar year. The ordinance applies to employers with 10 or more employees. It does not include independent contractors or employees covered by a collective bargaining agreement.
Morgan Lewis is tracking all COVID-19 related developments on a state and local level, including the growing number of jurisdictions issuing restrictions on employer operations and those providing guidance on the use of sick leave to help cover absences related to COVID-19. If you have any questions, would like to discuss which jurisdictions have developed or created new laws as a result of the COVID-19 outbreak, or need additional information on the contents of this LawFlash, please contact any of the Morgan Lewis lawyers listed below.
Jacqueline C. Aguilera
Michelle Seldin Silverman