Statutory Update – COVID-19 Leave Legislation; NM, VA and WA Pregnancy Accommodations

May 1, 2020

Federal Guidance

Below are links to various resources providing guidance on recently enacted Federal COVID-19 legislation.  Additional information may be found in previous Statutory Update releases posted on the Trion ADL Blog.

Families First Coronavirus Response Act (FFCRA)

Applicable to employers with fewer than 500 employees

H.R.6201

Department of Labor (DOL)

Internal Revenue Service (IRS)

State and Local Legislation

California COVID-19 Supplemental Paid Sick Leave

On April 16 the governor of California issued Executive Order N-51-20, providing Food Sector Workers up to 80 hours of “COVID-19 Supplemental Paid Sick Leave (SPSL).”

Applies to all private employers (or “Hiring Entities”) with 500 or more employees in the United States. The method applied to calculating size is the same as that under Families First Coronavirus Response Act (FFCRA).

Eligible Employees are Food Sector Workers who meet all of the following criteria:

    • The employee performs work in a food-related industry or in the retail food supply chain, including pick-up, delivery, warehousing, packaging, retail or preparation (as fully defined in 1(b) of the ordinance);
    • The employee is exempt from Executive Order N-33-20 as an Essential Critical Infrastructure Worker; and
    • The employee leaves his or her home to perform work for or through a Hiring Entity.

Leave Entitlement:

    • Considered Full-Time or scheduled to work an average of 40 hours per week for the Hiring Entity for the two-week period preceding leave: 80 hours
    • Employees not falling into the category above are eligible for leave equivalent to the total number of hours normally scheduled over a two-week period.  If the employee works a variable number of hours, eligibility for leave is calculated at 14 times the average hours the employee worked each day for the Hiring Entity during the 6-month period preceding leave (or since date of hire, if shorter).
    • SPSL is in addition to leave provided under California Paid Sick Leave.
    • An employer may not require an employee to use any paid or unpaid leave or time off prior to or instead of SPSL.
    • Employers who, as of April 16, 2020, provide leave of equivalent or greater value than, and for the same reasons for use as, SPSL are not required to provide additional leave.

Reasons for Use:

    • The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
    • The employee is advised by a healthcare provider to self-quarantine or self-isolate due to concerns related with COVID-19;
    • The employee is prohibited from working by the Hiring Entity due to health concerns related to potential transmission of COVID-19.

Pay: Each hour of SPSL must be paid at the rate which is the highest of the following, to a maximum of $511 per day and a total of $5,110:

    • The employee’s regular rate of pay for the latest pay period;
    • State minimum wage; or
    • Local minimum wage.

Employers must display a notice in a conspicuous place accessible to all employees. If employees do not frequent a workplace the notice may be distributed electronically. A model notice has been posted.

The Department of Industrial Relations (DIR) has provided additional information on its website in the form of FAQ.

The order was effective immediately upon signing, and its requirements extend the duration of any statewide stay-at-home order.

Los Angeles County, CA Supplemental Paid Sick Leave

On April 28 Los Angeles County’s Board of Supervisors unanimously approved the Worker Protection Ordinance establishing Supplemental Paid Sick Leave (SPSL) for employees impacted by COVID-19. The ordinance’s leave entitlement requirements apply retroactively to March 31 and expire December 31, 2020, unless extended. The ordinance is similar to those recently passed in San Francisco (below), the City of Los Angeles, and San Jose (both covered in our April 17 release).

Applies to employers as defined under California Labor Code Section 18 with 500 or more employees nationally.

Excludes:

An eligible employee is anyone employed as of April 28, 2020 and who performs any work in the unincorporated areas of Los Angeles County. 

Excludes:

    • Employees who are able to work from home.
    • At the employer’s discretion, emergency responders or healthcare providers (as defined in the ordinance)
    • Independent contractors. Employers must be able to demonstrate that an individual is an independent contractor and not an employee.
    • Food sector workers covered under California Supplemental Paid Sick Leave (Executive Order N-51-20).
    • Employees covered by a Collective Bargaining Agreement if the CBA is bilaterally modified to waive the ordinance’s provisions in clear and unambiguous terms.

Leave Entitlement: 

    • Employees working 40 hours per week or classified as Full-Time: 80 hours. SPSL is calculated based on the employee’s highest average two-week pay from January 1, 2020, through April 28.
    • Employees working less than 40 hours per week and not classified as Full-Time are eligible for an amount of SPSL equal to the employee’s average two-week pay from January 1, 2020, through April 28.
    • SPSL is in addition to any paid time off available to an employee under the California Paid Sick Leave law (CLC §246).
      • However, an employer’s obligation to offer SPSL may be reduced for every hour the employer allowed an employee to take paid time off for reasons consistent with those outlined under the ordinance (listed below) on or after March 31, 2020, not including any previously accrued leave.

Pay:  The maximum amount of benefit available per day is $511, with an aggregate maximum of $5,110

Use:

    • An employee’s request for SPSL must be in writing, which includes e-mail and text message.
    • An employer may not require an employee to use any other paid or unpaid leave or time off prior to or instead of SPSL.
    • Employers may require a doctor’s note or other documentation for the use of SPSL.

Reasons for Use:

    • A healthcare provider or public official requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
    • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (e.g., is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system);
    • The employee needs to care for a family member (as defined in the ordinance) who is subject to a federal, state, or local quarantine or isolation order related to COV1D-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or
    • The employee takes time off work to provide care for a family member whose senior care provider or whose school or child care provider ceases operations in response to a public official’s recommendation.

An employer may not discharge, threaten to discharge, demote, suspend, reduce other employee benefits, or in any manner discriminate or take adverse action against any employee in retaliation for exercising rights protected under the ordinance.

San Francisco, CA Public Health Emergency Leave Ordinance (PHELO)

On April 17 the mayor of San Francisco signed Ordinance No. 59-20, or the Public Health Emergency Leave Ordinance (“PHELO”). The requirements of the ordinance are effective until June 17, 2020, unless extended, or when the San Francisco Public Health Emergency is terminated, if earlier

Applies to private employers as defined under California Labor Code Section 18, with 500 or more employees “worldwide”.

Eligible employees are those who perform any work within the geographic boundaries of the City and County of San Francisco. “Employee” is as defined under California Labor Code §2750.3(a) and includes part-time or temporary workers and participants in a Welfare-to-Work Program administered by the Human Services Agency. It also includes individuals who perform limited work within the city and are considered employees under Rule 6 of the Rules implementing the San Francisco Paid Sick Leave Ordinance (PSLO).

Excludes:

    •  Employees who are able to work from home;
    • Employees covered by a Collective Bargaining Agreement if the ordinance’s requirements are waived in the CBA in clear and unambiguous terms;
    • Independent contractors (consistent with CA law).

Leave Entitlement:

    • Full-Time employees as of February 25, 2020, are eligible for 80 hours of Public Health Emergency Leave (PHEL).
    • Part-Time employees as of February 25, 2020, are eligible for PHEL hours equal to the average number of hours over a two-week period the employee was scheduled during the 6 months prior to February 25, 2020, including hours for which the employee took any type of leave.
    • For employees hired after February 25, 2020, the number of PHEL hours to which they are entitled is equal to the number of hours worked, on average, over a two-week period between the date of hire and the date upon which the leave is taken, including hours for which an employee took any type of leave.
    • The maximum amount of PHEL leave available is 80 hours.
    • PHEL is in addition to any paid time off an employer offered or provided employees on or before the PHELO’s effective date (April 17). However:
      • An employer’s obligation to offer PHEL may be reduced for every hour the employer allowed an employee to take paid time off for reasons consistent with those outlined under the ordinance (listed below) on or after February 25, 2020, not including any previously accrued hours.
      • Employers that provide paid leave under California Supplemental Paid Sick Leave (Executive Order N-51-20, described above) are permitted to offset that leave.
      • Note: that the reasons for use under the PHELO are broader than those under Executive Order N-51-20, so if a company falls under both the PHELO and the Executive Order, the company will need to ensure compliance with both.

Pay:

    • PHEL must be calculated in the same manner as paid sick leave under the PSLO (see §12W.3(h)).
    • Employers must provide payment for PHEL no later than the payday for the next payroll period after PHEL is taken.

Reasons for Use:

    • The employee is subject to a federal, state or local COVID-19 quarantine or isolation order, or is caring for a family member* who is under such quarantine;
    • The employee or a family member is a member of a “vulnerable population” as defined in Order No. C19-05 and unable to work due to recommendations in that order, Order No. C19-07b, or any similar order recommending or requiring restrictions for vulnerable or high-risk individuals.
    • The employee has been advised by a healthcare provider to self-quarantine due to COVID-19, or is caring for a family member who has been so advised**;
    • The employee or a family member is experiencing symptoms of COVID-19 and is seeking medical diagnosis**;
    • The employee is caring for a family member whose school or care provider is closed due to COVID-19;
    • The employee is experiencing any other substantially similar condition specified by the Local Health Officer or by the U.S. Secretary of Health and Human Services.

* Family members are as defined under the San Francisco Paid Sick Leave Ordinance.

** Employers of employees who are healthcare providers or emergency responders (as defined under FFCRA §826.30(c)) may limit these employees’ use of PHEL, but must at a minimum allow them to use PHEL if they have been directed by a healthcare provider to self-quarantine, or if they are experiencing COVID-19 symptoms and do not meet the CDC guidance for criteria to return to work for healthcare personnel with confirmed or suspected COVID-19.

Use:

    • Employees may use PHEL before using other accrued paid time off. An employee may choose, but the employer may not require an employee, to use other paid time off before using PHEL.
    • Employers may limit an employee’s use of PHEL hours in a given work week to the average number of hours over a one-week period that the employee was scheduled over the previous six months ending on February 25, 2020, including hours for which the employee took leave of any type.
    • Employers may not require a minimum increment for use of more than one hour.
    • Employers may require reasonable advance notice, but only if the need for leave is foreseeable.
    • An employer may require an employee to identify the basis for requesting PHEL, but may not require the disclosure of health information or other documentation, such as a doctor’s note or letter from a child care facility.
    • Upon an employee’s separation from employment, an employer is no longer obligated to provide or pay for any Public Health Emergency Leave not used prior to separation. Note:
      • “Furlough” is not considered a separation from employment.
      • The April 24 FAQ indicate that if an employee separates from an employer for any reason and is rehired by the employer within one year from the date of separation, unused PHEL must be reinstated.

Notice to Employees

    • Notice must be provided immediately in a manner calculated to reach all employees (posting at the workplace, electronic distribution, and/or posting on an employer’s intranet) in English, Spanish, Chinese, and any language spoken by at least 5% of employees at the worksite.
    • “To the extent feasible” the amount of PHEL available to the employee must be included on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages, consistent with requirements under the California Paid Sick Leave law (CLC §246(i)).

Employers must retain records documenting work schedules, hours worked, and PHEL taken by employees for a period of four years.

The ordinance, model notice and FAQ may be found on the Office of Labor Standards Enforcement’s (OLSE) webpage.

An employer may not discharge, threaten to discharge, demote, suspend, reduce other employee benefits, or in any manner discriminate or take adverse action against any employee in retaliation for exercising rights protected under the ordinance.

San Jose, CA COVID-19 Paid Sick Leave Guidance

On April 7, San Jose’s City Council adopted Ordinance No. 30390 requiring paid sick leave for employees who must leave their homes to perform “essential work” (see our April 17 release for details).  The city’s Office of Equality Assurance has since posted guidance on its website, including an April 16 Opinion Letter, FAQ (in multiple languages) and an Employee Rights Notice (though no specific notification requirements have been outlined just yet).

Colorado Health Emergency Leave with Pay (“HELP”) Amendment

Colorado “HELP”, on which Trion reported in our March 20 and April 8 releases, has been amended once again.  The following changes are effective as of April 27:

    • The list of industries included has been expanded to include retail establishments, real estate sales and leasing, offices and office work, elective medical, dental and health services, and various personal care services (industry descriptions may be found on the Colorado Department of Labor and Employment’s (CDLE) website).
    • Benefit entitlement has increased from four days at full pay to two weeks (calendar days, maximum 80 hours) at 2/3 the employee’s regular rate of pay (as defined in Rule 1.8).
    • Reasons for leave now include (updates in bold type): (1) Flu-like or respiratory illness symptoms; and (2) Quarantine or isolation instructions from a healthcare provider or authorized government official.
    • Leave ends once the employee has been fever-free for 72 hours, with other symptoms resolving as well, but not earlier than after 7 calendar days off from work (10 for healthcare workers).

Additional notes:

    • Employees are paid only for days they would have worked.
    • Employers may require documentation for taking HELP, but only as consistent with what the Family and Medical Leave Act (FMLA) permits and with the additional limitation that the employee be allowed to provide the documentation (1) upon return from leave, and (2) in the form of his or her own written statement instead of documentation directly from a healthcare provider (see FAQ for more details).
    • Employers who already offer all employees an amount of paid leave sufficient to comply with HELP requirements do not need to offer additional paid leave. However, an employee who exhausted paid leave provided by the employer but then qualifies for paid sick leave under HELP is entitled to the additional paid sick days.

HELP’s leave requirements have been extended to May 26; however, additional extensions may follow if the State of Disaster Emergency declared by the governor continues.

The CDLE’s website reflects the changes above, and any changes previously announced, in the HELP FAQ and Rules.

Washington Protections for High-Risk Individuals

On April 13 the governor of Washington issued Proclamation 20-46, which requires employers to protect individuals identified by the Centers for Disease Control (CDC) as at higher risk for severe illness from COVID-19 by:

  • Utilizing all options for alternative work assignments, including telework, alternative or remote work locations, reassignment, and social distancing measures;
  • If an alternative work assignment is not feasible, allowing use of employer-provided accrued leave or unemployment benefits (at the employee’s discretion); and
  • Maintaining employer-related health benefits during any period of paid or unpaid leave.

Employers are prohibited from taking any adverse action against any employee exercising his or her rights under the proclamation.

These requirements are in effect through June 12, 2020, unless extended.

More COVID-19 information and resources may be found on MMA’s Coronavirus Outbreak Resource Page.

Other Leave News

Accommodations and Anti-Discrimination Protections for Pregnant Workers

New Mexico: HB25, amends the state’s Human Rights Act effective May 20, 2020 to explicitly prohibit discrimination on the basis of pregnancy, childbirth or condition related to pregnancy or childbirth.  Employers must make reasonable accommodations for employees with needs arising from these conditions, and may not require an employee to take paid or unpaid leave of absence if another accommodation is available.

Virginia: Identical bills HB827 and SB712 amend the Virginia Human Rights Act and require employers to provide reasonable accommodations for needs associated pregnancy, childbirth or lactation. Employers are prohibited from requiring an employee to take paid or unpaid leave of absence if another accommodation is available, or for discriminating against or otherwise penalizing any employee who requests accommodation. Employers are required to notify employees of these protections via conspicuous posting, entry in the employee handbook, and in writing to new hires and within 10 days to any employee who provides notice that she is pregnant. The law takes effect on July 1, 2020.

Washington: HB2266 requires employers to provide reasonable accommodations for pregnancy and pregnancy-related conditions. Accommodations may include restructured or modified work duties, scheduling flexibility for prenatal visits, and break times for expression of breast milk without a healthcare provider’s certification (for up to two years). Employers are prohibited from taking any adverse action against an employee for requesting such accommodation. These requirements amend existing regulations effective June 11, 2020.

 

Please contact your Trion Account Team members for specific questions about these or other updates.

 

No part of this document may be reproduced, quoted, or transmitted in any form or by any means (electronic, mechanical, photocopying, recording or by any information storage and retrieval system), without express, prior permission, in writing from Marsh & McLennan Agency, LLC.

This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. Trion Group, a Marsh & McLennan Agency, LLC Company shall have no obligation to update this publication and shall have no liability to you or any other party arising out of this publication or any matter contained herein. Any statements concerning actuarial, tax, accounting or legal matters are based solely on our experience as consultants and are not to be relied upon as actuarial, accounting, tax or legal advice, for which you should consult your own professional advisors. Any modeling analytics or projections are subject to inherent uncertainty and the analysis could be materially affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. Copyright © 2020 Trion Group, a Marsh & McLennan Agency, LLC Company. All rights reserved. 

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