Statutory Update – Federal, State & Local COVID-19 Legislation

March 17, 2021

COVID-19 Leave Legislation

Federal

American Rescue Plan Act of 2021 Signed

On March 11 President Biden signed the American Rescue Plan Act of 2021 (H.R. 1319/Public Law No: 117-2). The law provides $1.9 trillion for COVID-19 relief, including a $150 million allocation to Department of Labor (DOL) agencies.  Among the employment-related provisions in the Act are:

  • Extension of tax credits for employers originally subject to the Families First Coronavirus Response Act (FFCRA) who voluntarily provide paid leave in accordance with FFCRA’s Emergency Paid Sick Leave (EPSL) and/or Emergency Family and Medical Leave (EFML) requirements, from April 1 through September 30, 2021.*
    • Reasons for leave:
      • Reasons for EFML now include all of those originally covered for EPSL. The first two weeks no longer need to be unpaid (see tax credits section below).
      • Reasons for EPSL and EFML now include:
        • The employee is seeking or awaiting the results of a test for, or a medical diagnosis of, COVID-19 because the employee has been exposed to COVID-19 or at the employer’s request;
        • For an employee to obtain a COVID-19 immunization or to recover from injury, disability, illness, or condition related to such immunization.
    • Leave entitlement:                                                                                                  
      • Provides new EPSL leave entitlement of up to 80 hours (10 days) as of April 1, 2021;
      • No new EFML entitlement if original 12 weeks of EFML (or regular FMLA) has been partially or wholly exhausted.
    • Tax credits for EPSL for the employee’s own needs are based on the employee’s regular rate of pay with a maximum of $511 per day; for family care needs credits are based on 2/3 the employee’s regular rate of pay, up to $200 per day. Credits for EFML are equal to 2/3 the employee’s regular rate of pay, up to $200 per day, or $12,000 in aggregate.
      • Credits will be applied against Medicare taxes (previously, credits were applied against Social Security taxes). Credit amounts that exceed taxes are refundable, and credits may be taken in advance.
      • Tax credits are not available if the employer fails to comply with FFCRA requirements, or if the employer discriminates in favor of highly compensated employees, Full-Time employees, or employees on the basis of tenure.
    • As of today the related IRS and DOL FAQ pages have not been updated, but are expected to be soon.
    • * The tax credit extension from January 1 through March 31, 2021 falls under the Consolidated Appropriations Act (CAA, H.R. 133).
  • Unemployment assistance
    • Extended through September 6, 2021:
      • Pandemic Unemployment Assistance (PUA) program for individuals otherwise ineligible for unemployment benefits, such as self-employed workers, gig workers, and independent contractors: increases from 50 to 79 weeks.
      • Federal Pandemic Unemployment Compensation program (FPUC): additional $300 weekly benefit;
      • Pandemic Emergency Unemployment Compensation (PEUC): additional 53 weeks on top of 26 weeks of state unemployment benefits (total of 79 weeks);
    • Exemption of up to $10,200 in 2020 unemployment compensation from Federal Income Tax for those with adjusted gross income of $150,000 or less.

State and Local

State and Local Emergency Paid Sick Leave 

While paid COVID-19 leave is no longer mandated on a federal level, 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 February 10 Statutory Update, with updates to Long Beach, CA, Los Angeles City, CA, San Francisco City/County, CA, Sonoma County, CA, and Colorado noted.  As previously mentioned, with the exception of Colorado and New York, none of the extensions requires 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 each of the Emergency Paid Sick Leave laws.

Jurisdiction

Current Emergency Paid Sick Leave Expiration

California State

December 31, 2020
If employee is on leave as of expiration date, employee may finish taking leave (unlike FFCRA).
 
Note: The California Division of Occupational Safety and Health Administration’s (Cal/OSHA) Emergency Temporary Standards (ETS), effective November 30, require that “COVID-19 cases” (defined as persons who tested positive for COVID-19 test, are subject to an official order to isolate or quarantine, or who have died due to COVID-19) and employees who have been exposed to COVID-19 at work be “excluded” from the workplace.  Employees who are “otherwise able and available to work” must have their pay*, seniority and benefits maintained. This “exclusion pay” does not apply if the employer can demonstrate that COVID-19 exposure was not work-related, or if the employee is unable to work for reasons other than protecting the workplace from COVID-19 transmission. An employee who is unable to work because of his or her COVID-19 symptoms would not be eligible for exclusion pay; rather, he or she may be eligible for Workers’ Compensation or State Disability Insurance benefits (see §3205(c)(10) and (11) and FAQ #47-60).
The ETS applies to all workers except those who have no exposure to others in the workplace, those working from home, and those covered by Cal/OSHA’s Aerosol Transmissible Diseases standard
The ETS will be in effect for 180 days (on/around May 29, 2021), unless re-adopted. See the dedicated Cal/OSHA webpage and FAQ for full details on the ETS’ requirements (which, we should add, are currently being challenged legally).
* Prior to providing full exclusion pay, employers may require use of employee’s paid sick leave benefits and consider (offset) benefit payments from other sources. 

Long Beach, CA

No set expiration date; reviewed every 90 days.
March 17 Update:  Last extended February 26, next review due by June 4, 2021.

Los Angeles (City), CA

Terminates two weeks following the expiration of the local COVID-19 emergency period.
March 17 Update:  On February 10 the mayor’s office issued an Executive Order making the following updates:
     • The original ordinance applied to individuals employed by the same employer between February 3 and March 4, 2020, who perform work within the city and who cannot work or telework. The Emergency Order redefines eligible employees as those who have been employed with the same employer for 60 days who perform work within the city and cannot work or telework.
     • Leave entitlement:
           • Full-Time Employees (40h/wk or classified as FT) are entitled to 80 hours of SPSL; leave is calculated based on the employee's average two week pay over the last 60 days of employment*.
           • All Other Employees:  An amount of SPSL no greater than the employee’s average two week pay over the last 60 days of employment
* Previously stated as the two-week average between February 3 and March 4, 2020.
 
These amendments do not change that SPSL requirements may be offset by any additional leave provided after March 4, 2020, for COVID-19-related reasons.
 
The city has posted updated regulations.

Los Angeles County, CA

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).

Oakland, CA

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 via Emergency Ordinance

San Francisco (City and County), CA

March 17 Update: Extended 60 days, through April 12, 2021, via February 19
Emergency Ordinance; see updated FAQ.
     • Amendments to original ordinance, effective February 11:
          • Conditionally excludes Non-Profit Organizations that do not engage in Healthcare Operations (both as defined);
          • Removes the requirement that employers must permit employees to use (i.e., be paid for) Public Health Emergency Leave for hours they are not scheduled to work.

San Jose, CA

Revised ordinance approved by the city council on January 5, effective January 1 through June 30, 2021:
   • No new EPSL entitlement if leave was taken in 2020 under the original ordinance or under FFCRA;
   • Now applies to all employers (not just those not subject to FFCRA);
   • Now applies to all employees who cannot work or telework (not just those who must leave home to perform “essential work”).
The city has posted updated information on its website.

San Mateo County, CA

Extended through June 30, 2021 via Emergency Ordinance.

Santa Rosa, CA

Reinstated via Urgency Ordinance (ORD-2021-001) effective February 2 through the later of March 31, 2021 or the expiration of FFCRA tax credits.
   • No new EPSL entitlement if leave was taken in 2020 under the original ordinance or under FFCRA.
   • Now applies to all employers (the original ordinance only applied to those with 500 or more employees nationally).
   • Specifies that leave is available if the employee is “unable to work”.
   • The original ordinance specified the paid benefit as regular rate of pay up to $511/day with an aggregate maximum of $5,110 for all types of leave. The Urgency Ordinance amends this to 66 2/3% of pay, up to $200/day with a maximum of $2,000, for leave associated with care for a family member or due to the unavailability of a minor child’s school or place of care.
   • Employers must now provide written notice to all current employees and to any new employee within his or her first week of employment.  A model notice has been posted on the city’s COVID-19 Paid Sick Leave webpage.
If the employer can show that the need for an employee’s requested leave is due to the employee’s intentional violation of a health order, the employer may deny the benefit.

Sonoma County, CA

Extended through June 30, 2021 via Urgency Ordinance; amendments to the original ordinance may be forthcoming.
March 17 Update: On February 9 the county’s Board of Supervisors approved Ordinance No. 6336, which replaced the original Supplemental Paid Sick Leave Ordinance (Ord. No. 6320) effective immediately. The requirements are almost identical to those of the original ordinance, with a few notable changes:
     • The original ordinance applied to employers with 500 or more employees within the unincorporated areas of the county; the new ordinance requires that employers of all sizes must provide Supplemental Paid Sick Leave.
     • Healthcare providers and emergency responders are (still) covered, however a leave request from an employee in either classification may be denied or limited if the need for leave is due to school or place of care closure and the employer makes a good faith determination that granting such leave would create a staffing shortfall.
     • The new Ordinance does not provide additional leave time. Employers may credit COVID-19 paid sick leave hours already provided under FFCRA, CA State SPSL (AB 1867), Cal/OSHA regulations and the original Sonoma County Ordinance, as well as any substantially similar COVID-19 paid sick leave legislation that may be enacted in the future, against the Ordinance's requirements.
     • Effective through June 30, 2021, unless extended.
     • A model notice has been provided.  The notice must be posted in English and Spanish in the workplace, on any intranet or app-based platform, or via email.

Colorado State

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.
   • Leave an employee may have taken under 2020’s EPSL requirements may not be counted against PHEL entitlement.
   • Employees may use PHEL for up to four weeks after the official termination of a public health emergency 
March 17 Update:
The current declaration, under Executive Order D 2021 068, expires April 15, which would permit PHEL leave to be taken through May 13, 2021.
Also, while accrued paid sick leave (PSL) is not required of employers with fewer than 16 employees until January 1, 2022, PHEL is required of all employers as of January 1, 2021.
* An updated version of the rules was adopted on February 23, 2021, which clarified that calculation of PHEL entitlement for employees who normally work fewer than 40 hours per week is based on when the leave is requested.
See our December 15 Statutory Update for our most recent coverage of HFWA.

District of Columbia

   • Paid Public Health Emergency Leave was extended through March 31, 2021.
   • DC FMLA amendments are applicable through the end of the COVID-19 public health emergency.

Nevada
Hospitality Workers

Undefined

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.
 
February 10 Update: On January 20 NY DOL issued guidance stating that:
   1. Other than nursing home staff, employees who have completed a mandatory quarantine or isolation period are not required to be tested prior to returning to work. However, an employee who subsequently receives a positive COVID-19 test must not report to work and will be considered subject to a mandatory order of isolation by the Department of Health and therefore eligible for COVID-19 Sick Leave – regardless whether he or she already received sick leave as required by the law for the first period of quarantine or isolation. The employee must submit documentation that he or she has received a positive test result, unless the test was administered by the employer.
   2. While employees are not required to be tested to discontinue a period of quarantine or isolation, an employee who chooses to be tested at the end of such period and continues to test positive must not report to work, and will be considered subject to a second mandatory order of isolation from the Department of Health and therefore entitled to COVID-19 Sick Leave. The employee must submit documentation that he or she has received a positive test result after the initial period of isolation, unless the test was administered by the employer.
   3. An employee not otherwise subject to a mandatory or precautionary order of quarantine or isolation who has been removed from the workplace by the employer due to exposure concerns must continue to be paid at his or her regular rate of pay until the employer permits the employee to return to work* or the employee becomes subject to a mandatory or precautionary order of quarantine or isolation. If the latter, the employee will be entitled to COVID-19 Sick Leave for the period of time he or she is subject to the mandatory or precautionary order of quarantine or isolation.
* Note: This is a departure from the law text, which specifically states that COVID-19 Sick Leave is only available if the employee is subject to a mandatory or precautionary order of quarantine or isolation issued by an authorized government agency. Therefore, it would seem that leave provided under this circumstance does not technically qualify as an instance of COVID-19 Sick Leave under the law, unless and until the employee “officially” becomes or is deemed subject to an order of quarantine or isolation.
   4. Employees are entitled to COVID-19 Sick Leave for up to three orders of quarantine or isolation. The second and third orders must be based on a positive COVID-19 test in accordance with items 1 and 2 above.

For more details on COVID-19 Sick Leave, please refer to our March 20 Update, as well as the state’s website and FAQ.

Philadelphia, PA

December 31, 2020
A covered individual may use all or a portion of PHEL at any time during the public health emergency and for one month following the conclusion of such emergency
No extension indicated as of February 10.

Pittsburgh, PA

Terminates upon expiration of the state's or city's emergency disaster declarations, whichever is sooner.
Employees may use COVID-19 Sick Time until one week following the official termination of the public health emergency.

Washington
Food Production Workers

In effect until the termination or expiration of State of Emergency (currently under Proclamation 20-25.9).

Seattle, WA
Gig Workers

In effect until 180 days after the end of the civil emergency

New York COVID-19 Vaccination Leave

On March 12 the governor of New York signed Senate Bill 2588A requiring all public and private employers in New York to provide up to four hours of paid time off to obtain COVID-19 vaccination.  This time is in addition to any other paid leave the employee may be entitled to, and applies “per vaccine injection” – meaning those receiving a vaccination that requires two doses are eligible for up to eight hours of leave.  CBAs may provide greater benefits or waive the requirement, as long as the waiver is expressly stated. Employers may not discriminate or retaliate against any employee requesting this time off.  The law was effective immediately and is set to expire on December 31, 2022.

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

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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 © 2021 Trion Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.

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