South Carolina Governor Henry McMaster signed into law the “South Carolina Lactation Support Act,” requiring employers to provide employees reasonable unpaid break time, or paid break time or mealtime, each day to express breast milk.

The Act went into effect on June 25, 2020, and, by July 25, 2020, the South Carolina Human Affairs Commission (SCHAC) must post on its website information to educate employers, employees, and employment agencies about their rights under this Act. Employers then will have 30 days to comply with the Act. Read more.

Its July. A time when in normal years, schools are closed and families are planning vacations. But in 2020, paid vacation is being replaced with paid leave under the Families First Coronavirus Response Act (“FFCRA”), leaving employers asking, can they still do that?!

For public employers and employers with less than 500 employees, the FFCRA provides two weeks of paid sick leave and up to 12 weeks of Emergency FMLA. The most popular reason for taking both leaves is that the employee is unable to work or telework due to a need to care for the employee’s child(ren) due to a school or childcare closure caused by COVID-19. Many employers hoped that the need for this leave would cease as summer arrived, after all, schools are normally closed in the summer — so the closure would no longer be caused by COVID-19. Not so fast.

Although the need for FFCRA leave due to school closures should have subsided, employees may still seek this leave if their childcare is closed due to COVID-19.

Last week the Department of Labor issued a Field Assistance Bulletin providing guidance to its investigators as to whether the closure of a summer camp, summer enrichment program, or other summer program for COVID-19 related reasons could support an employee’s request for FFCRA leave. And the answer is, not surprisingly, yes. Summer camps and programs may qualify as places of care of employees’ children for the purposes of FFCRA leave. The question is whether a specific summer camp or program would have been the place of care of an employee’s child had it not closed for COVID-19 related reasons. In many cases, employees had not yet enrolled their children in these programs in March when everything starting shutting down.

According to the Bulletin, employees may be entitled to FFCRA leave for the closure of a summer camp or program if:

• The child was enrolled in the camp or program before the closure was announced;
• The family submitted an application to participate in the camp or program before the closure;
• The family submitted a deposit for the camp or program;
• The child recently attended the camp or program (in 2019 or 2018) and is currently eligible to attend again;
• The child is on a waitlist;
• Or other affirmative evidence of a plan or intent for the child to attend the camp or program.

The DOL recognized that it is not a one-size fits all inquiry, but a parent’s mere interest in a camp or program is generally not enough. The Bulletin, which is written to guide the department’s investigators tells its investigators that when evaluating whether an employer improperly denied FFCRA leave to an employee based on the closure of a summer camp or program they should consider whether there is evidence of a plan for the child to attend the camp or program or, short of a “plan,” whether it is still more likely than not that the child would have attended the camp or program had it not closed due to COVID-19.

How does this help an employer? Employers are still limited in what information they can require before providing leave. Generally, an employee who requests FFCRA leave must provide the employer information in support of the need for leave either orally or in writing, including an explanation of the reason for leave and a statement that the employee is unable to work because of that reason.

Additionally, in the case of leave to care for the employee’s child whose school or place of care is closed, the employee must provide the name of the child, the name of the school, place of care, camp or summer program that is closed and a statement that no other suitable person is available to care for the child. In other words, although the employee may need to prove to the DOL investigator that it was more likely than not that the child would have attended the camp, the employee doesn’t necessarily need to prove it to the employer, making it difficult for employers to determine whether the employee is legitimately entitled to the leave.

On July 1, 2020, a number of substantive changes (including expanded coverage) to Chicago’s Paid Sick Leave Ordinance (PSLO) will become effective. These changes stem from recent amendments to the PSLO and the rules adopted by Chicago’s Department of Business Affairs and Consumer Protection (BACP). Read more.

The “Tennessee Pregnant Workers Fairness Act” (Senate Bill 2520) requires every employer with at least 15 employees to make a reasonable accommodation for an employee’s or prospective employee’s medical needs arising from pregnancy, childbirth, or related medical conditions, unless such accommodation would impose an undue hardship on business operations. The new law goes into effect on October 1, 2020.  Read more.

After three years of preparation, the District of Columbia’s Universal Paid Leave Amendment Act of 2016 goes live this Wednesday, July 1. The law enables eligible employees who work in D.C. to take paid leave for certain family and medical purposes. Earlier this year, the D.C. Department of Employment Services, which will administer the program, suggested that the leave benefits portion of the statute might be delayed due to COVID-19. However, this possibility did not come to pass, and benefits will be available to eligible employees starting this Wednesday as planned.

Funded by D.C.’s “Universal Paid Leave Fund,” which began receiving employer contributions on July 1, 2019, the Act enables covered employees to take:

  • Eight weeks of paid time off when they become new parents;
  • Six weeks to take care of a family member who has been diagnosed with a serious health condition; and
  • Two weeks for the employee’s own serious health condition.

The law also requires that the Paid Family Leave Employee Notice be posted in all covered D.C. workplaces. Additional details on this law can be found here: Paid Family Leave Law Approved by D.C. Council in Veto-Proof Vote and here: District of Columbia Marks Start of July with Paid Family Leave Taxes.

All D.C. employers should revisit their leave policies to ensure coordination between their existing leave policies and these new benefits. Employers who voluntarily offer paid leave benefits should be particularly careful to spell out how that leave synchronizes with these new requirements. In addition, the requirements of the PFL law should be included in management training, and employers should ensure that their HR and payroll staff are familiar with these new rules. If you have questions or concerns about this or other workplace developments, please contact the Jackson Lewis attorneys with whom you work.

The Minnesota Supreme Court (5-2) has upheld the Minneapolis Sick and Safe Time Ordinance, ruling state law does not preempt the Ordinance, and it can apply to employers who are located outside of the City. Minnesota Chamber of Commerce, et al. v. City of Minneapolis, No. A18-0771 (Minn. June 10, 2020). Read more here.

Following the Supreme Court’s decision, employers with employees who perform any work in Minneapolis should review their recordkeeping and other policies to ensure compliance with the Ordinance.

 

The Seattle City Council has enacted the Paid Sick and Safe Time for Gig Workers Ordinance, which temporarily provides paid sick and safe time (PSST) to “gig workers” for online-based food delivery network companies and drivers of transportation network companies with 250 or more gig workers worldwide. The ordinance takes effect July 13, 2020, and ends 180 days after either (1) the termination of the Mayor’s civil emergency, or (2) the termination of any concurrent civil emergency applicable to Seattle that is proclaimed by a public official in response to COVID-19, whichever is later. However, the law’s other legal requirements, such as recordkeeping, will stay in effect for three years. Read more.

Washington State Governor Jay Inslee has issued a new Proclamation that extends until 11:59 p.m. on August 1, 2020, the job protections in place for “high-risk” Washington employees. The job protections were to expire at 11:59 p.m. on June 12, 2020, under the previous Proclamation.

High-risk employees are (1) any individual 65 years or older, (2) anyone living in a nursing home or long-term care facility, and (3) those with “certain chronic underlying health conditions.”

For details of the protections, see our article, Washington: Proclamation Extending Job Protections to High-Risk Employees during COVID-19 Crisis.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

California is known for having a multitude of leaves available to employees from sick leave to organ donation leave. Despite this, California has not mandated employers provide bereavement leave for employees. Many businesses do include unpaid leave for employees to attend funerals and other related services, but such leave is not required under state law.

This may change by the end of the year if Assembly Bill 2999, the Bereavement Leave Act of 2020 (the Act), becomes law. The Act would require an employee to be provided up to 10 business days of unpaid leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner. Moreover, employers would be prohibited from interfering or restraining an employee from exercising their rights under the Act. The Act would also provide job protections for those using the leave.

Employees would not have to take the 10 days consecutively but would be required to take the leave within three months of the family member’s passing. The Act as currently drafted states, “[t]he bereavement leave shall be taken pursuant to any existing bereavement leave policy. If there is no existing bereavement leave policy, the bereavement leave is to be unpaid, except that an employee may use vacation, personal leave, or compensatory time off that is otherwise available to the employee.”

Under the bill, employers could request that employees, within 30 days of the first day of bereavement leave, provide documentation of the death, including an obituary, written verification of death, burial, or memorial services from a mortuary, funeral home or crematorium, religious institution, or governmental agency.

The bereavement leave would apply to all employees of any size employer, except those covered by a valid collective bargaining agreement that expressly provides bereavement leave. There is also no length of service requirement indicated in the Assembly Bill before the employee can take the leave.

Jackson Lewis will continue to monitor this bill and other employment-related legislation. To discuss leave law requirements in more depth, contact a Jackson Lewis attorney.