Soon after San Jose passed its supplemental paid sick leave ordinance to respond to the COVID-19 crisis, it issued further guidance regarding the leave. The Director of the Office of Equality Assurance, the office charged with enforcement of the emergency ordinance, has also issued an opinion letter to provide additional information. The opinion letter addresses the question of whether an employer that already provides the amount of sick leave hours required by the ordinance, must also provide additional leave for an employee who has exhausted some or all of that leave on the ordinance effective date. Read more.

Puerto Rico’s Law 37-2020 provides certain employees up to five days of paid leave once they exhaust other paid leave. Law 37-2020 amends Puerto Rico Law 180-1998, which establishes paid sick and vacation leave benefits for some private sector employees, excluding employees classified as executives, administrators, and professionals, among others. The new law is effective immediately. Read more.

The current circumstances surrounding the COVID-19 crisis have brought paid family and medical leave to the forefront of the national consciousness. While the federal government and other states have created new, immediately effective, paid family and medical leave laws, Massachusetts has remained committed to the existing timeframe for the Paid Family and Medical Leave Act (PFMLA), which will be effective January 1, 2021.

Despite the focus on the COVID-19 crisis, the Commonwealth of Massachusetts continues to prepare for the implementation of PMFLA in 2021. On April 7, 2020, the Massachusetts Department of Family and Medical Leave (DFML) announced new guidance for employers who have applied for or plan to apply for a “private plan” exemption and use a third-party insurer for the privately funded paid leave plan. Read more.

Employers have been struggling with exactly what information they are permitted to disclose to a public health agency when an employee is diagnosed with COVID-19. The EEOC yesterday for the first time advised that, at least under the Americans with Disabilities Act, employers may disclose the employee’s name to the public health agency. However, employers will still need to be mindful of other more stringent state restrictions and privacy concerns. The EEOC also said that a temporary staffing agency or contractor that places an employee in an employer’s workplace may notify the employer if it learns the employee has COVID-19.

Employers should, however, continue to take steps to limit the number of people who know the name of the employee. While it is important to conduct a close contacts analysis and notify co-workers and other individuals who may have come into contact with the employee, employers should not disclose the employee’s identity.

The EEOC also addressed several other important questions from employers in its updated “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

Please visit our COVID-19 resource webpage or subscribe to our COVID-19 publications and webinar invitations to stay abreast of the developments or contact a JL attorney directly with any questions.

Under Seattle’s Paid Sick and Safe Time (PSST) law, an employer normally may require verification (including a doctor’s note) for the use of PSST after three consecutive workdays in which the employee uses paid sick/safe leave. But effective immediately and through June 7, 2020, 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.

Employers may seek other forms of documentation, including (1) the employee’s own statement, or (2) documentation from other individuals like service providers, social workers, case managers, or legal advocates, stating that, to their knowledge, the employee’s use of paid sick leave is for a covered purpose.

The Seattle Office of Labor Standards (OLS) adopted this emergency rule on April 8, 2020, and strongly encourages employers “to be flexible as possible given the COVID-19 Civil Emergency.”

Unless OLS takes further action (like early revocation or extension of this temporary rule), the old rule about sick leave verification will automatically become effective again on June 8, 2020.

Please note: this rule only affects employers within the Seattle city limits. At the time of this blog’s publication, Washington’s statewide paid sick leave law still allows employers to require a doctor’s note after an employee has been absent for more than three consecutive workdays.

On March 26, 2020, Governor Jay Inslee signed into law amendments to the Washington Paid Family and Medical Leave Act. The significant changes are as follows:

  • Lawsuits
    • The WPFMLA now includes a private right of action in court for an employee claiming interference, retaliation, or discrimination under this law. The limitations period is three years. Class actions are permitted. Damages available include lost wages/salary, benefits, and “other compensation denied or lost” by reason of the violation, reasonable attorney fees and litigation costs.
    • Previously, alleged violations were restricted to administrative adjudication through the Employment Security Department (ESD).
    • An employee may still pursue an administrative complaint with the ESD, but an employee may not pursue both an administrative complaint and a complaint in court simultaneously.
    • An employee is not required to file an administrative complaint with ESD before filing suit in court.
  • Supplemental Benefits
    • Previously, the law did not clearly define “supplemental benefits.” Now, the law defines “supplemental benefits” as all payments made by an employer to an employee as salary continuation or as “paid time off.” This includes vacation leave, personal leave, medical leave, sick leave, compensatory leave, or any other paid leave offered by an employer under the employer’s established policy.
    • ESD will not prorate or reduce an employee’s weekly benefit amount due to the receipt of “supplemental benefit payments.”
  • Waiting Period
    • The law previously provided that the “waiting period” was unpaid, leaving unclear whether an employee could receive employer-provided supplemental benefits during that period. The amendments clarify that, yes, an eligible employee may satisfy the waiting period requirement while simultaneously receiving “paid time off” for any part of the waiting period.
    • The amendments eliminated the waiting period for qualifying military exigencies.
  • Coverage
    • The new law expands the definition of “family member” to include a child’s spouse.
    • It also exempts “casual labor” from the coverage of the law. “Casual labor” is defined as work performed infrequently and irregularly, and if performed for an employer, does not promote or advance the employer’s customary trade or business.
  • Workers’ Compensation Disqualification
    • The law previously disqualified from eligibility an employee receiving workers’ compensation, but the amendment limits this disqualification to those employees with permanent total disability or temporary total disability.
  • Conditional Waiver From Eligibility
    • This amendment changes the test for receiving a conditional waiver from WPFML premiums. Previously, the employee would have to be “physically based” outside of Washington in order to qualify for a conditional waiver of premiums for that employee. Now, the question is whether the employee “primarily performs work” outside of Washington.
  • Removes Limitation on Successive Related Periods of WPFML
    • The law formerly provided that successive periods of WPFML caused by the same or related injury or sickness were deemed a single period of family and medical leave only if separated by less than four months. This requirement has been removed.
  • Child Support Obligations
    • The amendments specify the child support obligations that would lead to a WPFML benefit deduction.
    • The new law adds WPFML benefits to the types of payments from ESD that trigger certain obligations for child support-related payroll deductions.
  • Voluntary Plan
    • When a voluntary plan ends or is withdrawn, the employer must pay the ESD all required premiums including any premiums owed that were not covered by the voluntary plan, if any.

Some of these amendments went into effect immediately, while others will go into effect on June 11, 2020. Please contact Jackson Lewis attorneys for additional information on this and other workplace issues.

Texas employers no longer must provide paid sick leave to their employees in Dallas following the decision of U.S. District Court Judge Sean D. Jordan. ESI/Employee Solutions LP et al. v. City of Dallas et al., No. 4:19-cv-00570 (E.D. Tex. Mar. 30, 2020). The decision was released two days before enforcement of the Dallas Paid Sick Leave Ordinance would have commenced. In the federal lawsuit challenging the legality of the Ordinance, the court granted the plaintiffs’ motion for preliminary injunction, prohibiting the enforcement of the Ordinance against businesses pending resolution of the litigation. Concurrently, the court’s order also denied, in substantial part, the City of Dallas’ separate motion to dismiss the case. Read more.

On March 27, 2020, the City Council passed an ordinance mandating employers with 500 or more employees nationally offer Supplemental Paid Sick Leave for various COVID-19 related reasons described below. The ordinance is awaiting Mayor Eric Garcetti’s review and anticipated approval. Under the ordinance, covered employers must offer 80 hours of Supplemental Paid Sick Leave to employees who perform work within the geographic boundaries of the City of Los Angeles. However, the ordinance caps the total amount to be paid to no more than $511 per day and no more than $5,110 in the aggregate. An employer may not condition the Supplemental Paid Sick Leave on receipt of a doctor’s note from the employee. Read more.

The Department of Labor has been hard at work issuing FAQs to try to explain the provisions of the Families First Coronavirus Response Act before it goes into effect on April 1, 2020.  To see earlier reports on these FAQs, see our blog posts on March 24th, March 27th and March 28th.

The latest FAQs (we are now up to 59 FAQs from the DOL on this subject), include further details about the planned exception for certain small employers.

Employers should keep in mind that FAQs may be considered by courts as informal guidance but do not have the force of law (or even of regulations, which have not yet been issued by the DOL).  As is evident by the manner in which the DOL is currently publishing these, they can also be changed by the DOL without notice.  Therefore, to the extent employers rely upon these, before the DOL issues official regulations, they should check to make sure they are reviewing the current version and print a copy of the DOL’s website page containing these FAQs at that time, which may be necessary to establish good faith, if the information later changes.

The FFCRA provides that the DOL can issue regulations exempting small businesses with fewer than 50 employees from certain  provisions of the Emergency Paid Sick Leave and Emergency Family and Medical Leave Expansion Act, when the imposition of such requirements would jeopardize the viability of the business as a going concern.  Based on the law and the FAQs, it appears this exception will only exempt certain small employers from the paid sick leave and expanded FMLA when the reason it is needed is due to a school or child care closure.  Even if an employer qualifies for this exception, they still must provide up to 80 hours of paid sick leave for employees to use for the other reasons under the new Emergency Paid Sick Leave Act, including when an employee is unable to work or telework due to a need for leave because:  (1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (5) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

The DOL’s recent FAQs provide some guidance as to what criteria a small employer must meet in order to qualify for the exemption.  In particular, in order to qualify, the business must be less than 50 employees, the leave needed must be due to a school or child care closure or the unavailability of a child care provider due to COVID19, and an authorized officer of the business must determine that one of the following apply:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Below are the specific FAQs from the DOL addressing these issues:

58. When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?

An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing paid sick leave and expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:

    • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
    • The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
    • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

59. If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?

A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

    • employer employs fewer than 50 employees;
    • leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
    • an authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.

The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.

Please visit our COVID-19 resource webpage often to stay abreast of the developments or contact your JL attorney directly with any questions

The Department of Labor has been hard at work issuing FAQs to try to explain the provisions of the Families First Coronavirus Response Act before it goes into effect on April 1, 2020.  To see earlier reports on these FAQs, see our blog posts on March 24th and March 27th. The latest FAQs (we are now up to 59 FAQs from the DOL on this subject), include a number of helpful provisions for employers, in particular health care employers, some of which are different than what had previously been reported.

Employers should keep in mind that FAQs may be considered by courts as informal guidance but do not have the force of law (or even of regulations, which have not yet been issued by the DOL).  As is evident by the manner in which the DOL is currently publishing these, they can also be changed by the DOL without notice.  Therefore, to the extent employers rely upon these, before official regulations are issued by the DOL, they should check to make sure they are reviewing the current version and print a copy of the DOL’s website page containing these FAQs at that time, which may be necessary to establish good faith, if the information later changes.

The FFCRA allows employers of health care providers and emergency responders to exclude these employees from the leave provisions under both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.  In its definitions, the FFCRA defined “health care provider” to have the same meaning as under the FMLA (which is limited primarily to doctors and other providers).  The DOL has clarified in its FAQs that the term “health care provider” actually has two different meanings in the act.  According to the DOL, the definition section which limits health care providers to doctors and specific individuals, only applies to define the individual who advises an employee to self-quarantine under the second basis for paid sick leave.  The DOL now provides a new, second definition of health care provider for the purpose of determining who can be excluded under the health care employee exception.  Below are the relevant FAQs from the DOL on the definition of health care provider and emergency responders.  You should consult with counsel about how these FAQs and the FFCRA apply to your company’s own circumstances:

55. Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?

The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

56. Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.

57. Who is an emergency responder?

For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

Please visit our COVID-19 resource webpage often to stay abreast of the developments or contact your JL attorney directly with any questions.