Statutory Update – COVID-19 Leave Legislation; WA PFML
February 10, 2021
COVID-19 Leave Legislation
IRS Guidance on Tax Credits for Voluntary FFCRA Leave
Our January 12 Statutory Update noted that, while COVID-19 paid leave required by the Families First Coronavirus Response Act (FFCRA) expired effective December 31, 2020, the Consolidated Appropriations Act (CAA, H.R. 133) allows employers to elect to continue to offer their employees Emergency Paid Sick Leave (EPSL) and/or Emergency Family and Medical Leave (EFML) through March 31, 2021. On January 28 the Internal Revenue Service (IRS) updated their FAQ to provide guidance around claiming the tax credits associated with voluntary extension of FFCRA leave. The updated FAQ detail items such as who may claim credits, the amount of credits available, when and how credits may be claimed, and the interplay with the Employee Retention Credit and Paycheck Protection Program under the CARES Act.
OSHA Guidance on Workplace Safety
In response to President Biden’s January 21 Executive Order, the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) posted updated guidance to assist non-healthcare* employers in implementing workplace safety measures around COVID-19. The guidance addresses identifying exposure and infection risks, reducing the potential for infection through proper protection and worksite cleaning, and establishing clear communication with employees around protocols for prevention, testing and voicing concerns. While the guidance does not impose requirements that employers provide leave to employees who have been exposed to COVID-19 in the workplace, it does provide a few recommendations for managing these situations:
- Instruct workers who are infected or potentially infected to stay home and isolate or quarantine to prevent or reduce the risk of transmission of COVID-19. Ensure that absence policies are non-punitive. Policies that encourage workers to come to work sick or when they have been exposed to COVID-19 are disfavored. See additional guidance involving eliminating the hazard.
- Minimize the negative impact of quarantine and isolation on workers. When possible, allow them to telework, or work in an area isolated from others. If those are not possible, allow workers to use paid sick leave, if available, or consider implementing paid leave policies to reduce risk for everyone at the workplace. The Families First Coronavirus Response Act provides certain employers 100% reimbursement through tax credits to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 through March 31, 2021.
- Isolate workers who show symptoms at work. Workers who appear to have symptoms upon arrival at work or who develop symptoms during their work shift should immediately be separated from other workers, customers, and visitors, sent home, and encouraged to seek medical attention. See additional elements involving screening and testing.
- Consider protections for workers at higher risk for severe illness through supportive policies and practices. Older adults and people of any age who have serious underlying medical conditions are at higher risk for severe illness from COVID-19. Workers with disabilities may be legally entitled to “reasonable accommodations” that protect them from the risk of contracting COVID-19. Where feasible, employers should consider reasonable modifications for workers identified as high-risk who can do some or all of their work at home (part or full-time), or in less densely-occupied, better-ventilated alternate facilities or offices.
The Executive Order also directed OSHA to evaluate whether federal emergency standards (perhaps similar to Virginia’s newly adopted Permanent Standard) are necessary and, if so, issue them by March 15, 2021.
* OSHA’s industry-specific guidance may be found here.
State and Local
State and Local Emergency Paid Sick Leave
While talks of a revival of mandated paid COVID-19 leave on a federal level are still underway, state and local requirements are still in place. Below is a copy of the summary of Emergency Paid Sick Leave (EPSL) extensions provided in our January 12 Update, with updates to Los Angeles County, CA, Oakland, CA, Santa Rosa, CA, Sonoma County, CA, and New York State noted. As previously mentioned, with the exception of Colorado and New York, none of the extensions require employers to provide new banks of leave, only additional time for employees to use original entitlements.
Please see our side-by-side comparison for more details on the Emergency Paid Sick Leave laws.
Current Emergency Paid Sick Leave Expiration
December 31, 2020
Long Beach, CA
No set expiration date; reviewed every 90 days (last extended December 8, next review due by March 6, 2021).
Los Angeles (City), CA
Terminates two weeks following the expiration of the local COVID-19 emergency period.
Los Angeles County, CA
February 10 Update: Extended via Urgency Ordinance until two calendar weeks after the expiration of the local COVID-19 emergency.
• No new EPSL entitlement if leave was taken in 2020 under the original ordinance or under FFCRA;
• As of January 1, 2021, the requirements apply to all employers in the unincorporated areas of LA County (the original ordinance only applied to those with 500 or more employees nationally).
February 10 Update: Extended via Emergency Ordinance for the duration of Oakland’s March 9, 2020 Declaration of Emergency.
• No new EPSL entitlement if leave was taken in 2020 under the original ordinance, CA State EPSL or FFCRA.
Sacramento (City), CA
Extended through March 31, 2021 via Emergency Ordinance
Sacramento County, CA
Extended through March 31, 2021.
San Francisco, CA
San Jose, CA
Revised ordinance approved by the city council on January 5, effective January 1 through June 30, 2021:
San Mateo County, CA
Extended through June 30, 2021 via Emergency Ordinance.
Santa Rosa, CA
February 10 Update: Reinstated via Urgency Ordinance (ORD-2021-001) effective February 2 through the later of March 31, 2021 or the expiration of FFCRA tax credits.
Sonoma County, CA
February 10 Update: Extended through June 30, 2021 via Urgency Ordinance; amendments to the original ordinance may be forthcoming.
The Healthy Families and Workplaces Act (HFWA) featured COVID-19 Emergency Paid Sick Leave (EPSL), which was effective July 15 and ended December 31, 2020, as well as permanent accrued paid sick leave (PSL) and accompanying public health emergency leave (PHEL) effective January 1, 2021. It was previously unclear whether the public health emergency declared due to COVID-19 in 2020 would trigger PHEL entitlement in 2021. However, a December 23 emergency rule and CDLE’s recently released INFOs #6C confirm that, since the COVID-19 public health emergency was “re-declared” after HFWA’s July 14 effective date and continues into 2021, employees are entitled to a new allotment of up to 80 hours of paid leave under HFWA’s PHEL beginning January 1.
District of Columbia
• Paid Public Health Emergency Leave was extended through March 31, 2021.
New York State
In effect for the duration of any COVID-19 quarantine or isolation order issued by the state, the department of health, local board of health, or any government entity duly authorized to issue such order due to COVID-19.
December 31, 2020
Terminates upon expiration of the state's or city's emergency disaster declarations, whichever is sooner.
In effect until the termination or expiration of State of Emergency (currently under Proclamation 20-25.9).
In effect until 180 days after the end of the civil emergency
Washington Paid Family and Medical Leave (WA PFML) – Eligibility for Remote Workers (COVID-19)
On January 29 Washington’s Employment Security Department (ESD) issued a temporary Emergency Rule stating that obligations under and eligibility for WA PFML will not change due to temporary COVID-19 restrictions, if:
- the employee’s service was localized in Washington prior to March 23, 2020;
- COVID-19 restrictions resulted in the employee working from a location outside the state (e.g., from home or other temporary location outside WA); and
- the employer and employee intend for the employee to return to performing work exclusively or mostly in Washington once COVID-19 restrictions are lifted.
Employers who may have made adjustments in advance of this rule will be required to submit amended reporting and remit back premiums for any applicable quarters, unless the adjustments were made upon advice from ESD. This rule is effective through May 29, 2021.
Please contact your MMA ADL Account Team members for specific questions about these or other updates.
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