Colorado voters approved the Paid Medical and Family Leave (PMFL) Initiative, Proposition 118, on Election Day. PMFL creates a state-run paid family and medical leave insurance program in Colorado that allows employees to take up to 12 weeks of leave and keep their job. The program, which begins on January 1, 2024, is similar in many ways to unemployment insurance and what exists in California and New Jersey.  Read more here.

In September, when Governor Newsom signed Assembly Bill 1867, employers hoped that the state-wide COVID-19 Supplemental Leave was a replacement for the patchwork of local ordinances. However, due to differences in coverage, many employers are faced with complying with the more stringent local ordinances. In particular, many local ordinances allow an employee to take paid leave to care for a family member if their school or place of care is closed due to COVID-19.  AB 1867 does not provide leave for this purpose.

The local ordinances also have other differences that employers need to consider.  One of the biggest is when they expire.  AB 1867 provides that its leave provisions will sunset on the later of December 31, 2020, or expiration of any federal extension of the Emergency Paid Sick Leave Act established by the Families First Coronavirus Response Act (“FFCRA”).  However, several local ordinances differ, including the City of Los Angeles ordinance (2 weeks after the expiration of the COVID-19 local emergency period) and the San Francisco ordinance (currently December 12, 2020, unless extended by the Board of Supervisors).   Other ordinances, including the City of Oakland, City of San Diego, and County of Los Angeles contain language which allow for extensions beyond December 31, 2020, if approved by elected officials.

Employers in a jurisdiction that has adopted a local COVID-supplemental sick leave ordinance should ensure that they comply with both state and local laws.   Jackson Lewis will continue to track the status of federal, state, and local ordinances pertaining to COVID-19 and paid sick leave.  If you have questions about compliance with California leave requirements pertaining to COVID-19 contact a Jackson Lewis attorney to discuss.

A federal court in Indiana dismissed an employee’s claim that his employer did not have the right to request a medical examination after he tested positive for drugs and subsequently admitted that he was taking numerous prescription medications that could create a safety risk.  Beal v. Muncie Sanitary District, Case No. 1:19-cv-01506 (S.D. Ind. Oct. 22, 2020).  Read more on our Drug and Alcohol Testing Law Advisor.

Just when you thought you had your contact tracing protocol down for dealing with COVID-19 exposures, CDC guidance has changed again.

The CDC has now expanded the definition of close contact to be  “Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”  Under the new definition, three five-minute encounters, five three-minute encounters, or fifteen one-minute encounters over a 24 hour period (which could overlap on two workdays) could all be considered “close contacts.”  The CDC states that  “Data are limited, making it difficult to precisely define ‘close contact;’ however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation.”   But then the CDC appears to add some flexibility into the definition, stating that factors to consider when defining close contact include:

  • proximity (closer distance likely increases exposure risk),
  • the duration of exposure (longer exposure time likely increases exposure risk),
  • whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding),
  • if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and
  • other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors).

According to the CDC, “the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.”

This change will make contact tracing more difficult to be sure.  But it is a good time to remind employees of the importance of maintaining social distance at all times.

As we continue to follow the ever changing COVID saga, the attorneys at Jackson Lewis and our COVID-19 Taskforce are available to assist you with your questions and employee issues, including how to implement this new guidance into your protocols.  You can also gather additional information and resources from our COVID-19 web page, our multi-state COVID-19 Advisor and our new COVID-19 Employment LitWatch.

 

When it comes to disability and leave management, the past year has been one HR hurricane after another. Everything is different, including our Annual Disability & Leave Management Symposium. We know you are as frustrated as we are. We wanted to have an old fashioned, in-person conference, but in the interest of social distancing we’ve decided to shake (not stir) things up. That’s why we have converted our annual symposium into a two-part “Happy Hour” series. End your day on a high note as we cover the following topics over two days:

The COVID Impact on Disability and Leave Management Law:  Hindsight Is Always 20/20, Isn’t It?  

In Case You Missed It: Beyond COVID-19

You’ve Got Questions, We’ve Got Answers 

Details and directions to register are available here.

Philadelphia workers who are not covered by federal sick leave laws, such as the Families First Coronavirus Response Act (FFCRA), are entitled to paid sick leave benefits under the new public health emergency leave bill (amending Chapter 9-4100 of the Philadelphia Code) signed by Mayor Jim Kenney. The new leave requirements remain in effect until December 31, 2020, unless renewed. Read our full article here.

California wrapped up its 2020 Legislative Session with the Governor passing several bills that bring dramatic changes to employee leave requirements.

One of the first bills signed was Assembly Bill 1867, the statewide COVID-19 supplemental paid sick leave.  AB 1867 fills in some of the exceptions contained in the Families First Coronavirus Response Act and provides up to 80 hours of paid leave to full-time employees.  Part-time employees and those who work on a variable schedule receive pro-rated benefits.  Prior to the passage of AB 1867, several cities and counties had passed local ordinances providing supplemental sick leave for COVID-19 purposes.  AB 1867 accounts for these local ordinances and provides for credits for leave provided under these ordinances.  AB 1867 also codified an earlier Executive Order which provided food sector workers with COVID-related leave.

The Governor signed Senate Bill 1383  which expanded the California Family Rights Act (“CFRA”) to apply to employers employing 5 or more employees. The CFRA, similar to the Family Medical Leave Act, previously authorized eligible employees of employers with 50 or more employees to take up to 12 weeks of job-protected leave. SB 1383 also lists additional reasons for which CFRA leave is available.  Beginning January 1, 2021, employees may use CFRA leave to take time off to care for a grandparent, grandchild, or sibling with a serious health condition or because of a qualifying exigency related to the employee’s call to active duty or the call to active duty for certain family members in the Armed Forces.  Currently leave is only available for the employee’s own serious health condition, to care for a parent, spouse, domestic partner, or child with a serious health condition and to bond with a new child.  To complement this expansion of the CFRA, Assembly Bill 2399, adds qualifying exigency leave as a reason for receiving wage replacement benefits from the California Paid Family Leave Program (employees are currently eligible to receive wage replacements benefits if they were on an approved leave to care for a grandparent, grandchild or sibling).

The Governor also signed Assembly Bill 2992, which imposes further limitations on employers from discharging, discriminating, or retaliating against an employee who is a victim of crime or abuse. Before the passage of this legislation, under Labor Code section 230, employers were eligible to take time off if they or an immediate family member were a victim of certain violent crimes or felonies. AB 2992 expands the types of crimes that may qualify an employee for leave to include those which caused a physical or mental injury, or a threat of physical injury, regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.

Employers with workforces in California should review their current policies that may be affected by these changes, especially with respect to the new supplemental paid sick leave, as that was an urgency ordinance that went into effect for non-food sector workers on September 19, 2020. All other bills go into effect on January 1, 2021.

If you have questions about these or other new California bills, contact a Jackson Lewis attorney to discuss.

Changes to New York City’s Paid Sick and Safe Leave Law (NYCSL) took effect on September 30, 2020.

On September 23, 2020, the New York City Council enacted Int. No 2032-A, and Mayor Bill de Blasio signed the bill on September 28, 2020.

Most of the modifications comport the NYCSL with New York State’s Sick Leave Law (NYSSL), which also became effective on September 30, 2020. See our article New York State’s New Paid Sick Leave Law Goes Into Effect September 30, 2020. However, the amendments to the NYCSL also impose additional requirements on New York City employers.

Read our full article here.

As the January 1, 2021, effective date of Maine’s Earned Paid Employee Leave Law approaches, the state Department of Labor (DOL) has promulgated the much-anticipated final regulations for implementing the statute.

Under the law, private employers with at least 10 employees in Maine must provide employees one hour of paid leave for every 40 hours worked, up to a maximum of 40 hours of paid leave per year, for any reason.

As is often the case, the DOL’s regulations answer some questions, but leave others unaddressed.

Read our article.

California employers with as few as five employees must provide family and medical leave rights to their employees under a new law signed by Governor Gavin Newsom on September 17, 2020. The new law significantly expands the state’s existing family and medical leave entitlements and goes into effect on January 1, 2021.

Senate Bill 1383 (SB 1383) also expands the covered reasons for protected leave and the family members whom employees may take leave to care for under the law.

Read the full article on Jackson Lewis Publications Page.