Paid leave changes in the U.S. due to the COVID-19 emergency: An overview

Paid leave has always been a complex headache for employers and payroll administrators in the U.S., primarily because federal, state, and local requirements differ across jurisdictions and industries. In 2020, we’ve seen paid leave requirements accelerate at an unprecedented pace due to the COVID-19 emergency. We suspect that we aren’t the only ones pulling our hair out trying to keep track of the changes. To that end, below is a high-level overview to help you stay organized in the COVID-19 paid leave realm in 2020.

New temporary (and permanent) paid sick leave requirements related to the COVID-19 emergency

New leave requirements related to the COVID-19 emergency form a long list. Not surprisingly, the federal, state, and local approaches are all slightly different. Some locations have decided to create new legislation tied specifically to paid sick leave for COVID-19. Some places have also decided to “fill the gap” for sick leave coverage where employers are not covered by the federal requirements (which primarily apply to employers with fewer than 500 workers). Others have decided to allow existing paid sick leave laws to be used for COVID-19. Keep in mind that many of the requirements below are temporary in nature, meaning that at some point they will expire. One exception to this is Colorado’s Healthy Families and Workplace Act, which has some permanent paid leave requirements (see below).

Federal changes

At the federal level, the Families First Coronavirus Response Act (FFCRA) provides covered employees of organizations with fewer than 500 workers with paid leave for several COVID-19 related reasons, including:

• The employee’s own quarantine or medical diagnosis needs
• Quarantine of other individuals for whom the employee must provide care
• For certain childcare needs when children are displaced from school or day care

This leave entitlement currently expires Dec. 31, 2020. Additionally, the FFCRA temporarily expanded the unpaid benefits of the Family and Medical Leave Act to provide leave to eligible employees with a qualifying public health emergency.

State changes

At the state level, some states with existing paid sick leave and paid family leave laws already in place responded to the COVID-19 pandemic by clarifying that those leave entitlements should also be made available to employees needing time away from work for personal or family needs that arise due to the public health emergency. (Examples include California and New Jersey. New Jersey also provides a helpful side-by-side chart analyzing which leave entitlements various COVID-19 related needs fall under). California also now has Executive Order N-51-20, which covers California Food Sector workers and provides supplemental sick leave for COVID-19. Additional changes at the state level include:

• The District of Columbia expanded its paid sick leave requirement for “medium-sized” employers, effective Apr. 10, 2020, and for the duration of the COVID-19 emergency. Under this law, covered employers must provide paid “Declaration of Emergency” (DOE) leave for any reason employees might take leave under the FFCRA.
• As of March 18, 2020, New York enacted special emergency leave for employees complying with orders to quarantine or self-isolate. The duration of leave and amount that must be paid depends on the size of the employer. In addition, in June of 2020, New York’s Governor issued an Executive Order that prohibits payment of state COVID-19 sick leave benefits to people who voluntarily travel to other highly infected states.
• As of Apr. 9, 2020, Puerto Rico now provides an additional five days of paid “special leave” for COVID-19 reasons to certain employees.
• Colorado approached paid sick leave in stages, first enacting the Health Emergency Leave with Pay (HELP) rules, and later replacing those with Colorado’s Healthy Families and Workplaces Act. This law contains three paid leave programs: (1) COVID-19- specific paid sick leave, which builds on the FFCRA foundation and is in effect from July 15 through Dec. 31, 2020, (2) Paid Sick & Safe Time which will be phased in based on employer size, beginning Jan. 1, 2021 at the earliest, and (3) Public Health Emergency Leave (PHEL), which tops up employees’ available leave for public health emergencies into the future.
• Washington’s governor signed a proclamation that temporarily prohibits covered food production employers from operating (between Aug. 18, 2020 – Nov. 13, 2020), unless workers are provided with supplemental paid sick leave for needs related to COVID-19. Generally, workers may receive up to two weeks of leave, up to 80 hours for full time workers.
• Most recently, Nevada passed a law that will soon require certain public accommodation facilities (i.e. hotels, casinos, resorts etc.) in counties whose populations exceed 100,000 people to provide supplemental paid leave (generally for up to 3 days) to get tested for COVID-19. Employees who receive a COVID-19 diagnosis will also be entitled to additional paid leave.

Local changes

There are too many local changes related to the COVID-19 emergency to cover them all in detail here. California has many local paid sick leave ordinances that primarily require supplemental sick leave for large employers with 500+ employees (effectively expanding coverage of the FFCRA leave provision). Localities that have made changes are listed below, but keep in mind that each law has its own unique details, so employers should review the ones that apply to them closely:

• City of Los Angeles
• County of Los Angeles
• San Jose
• San Francisco
• Oakland
• Long Beach
• Sacramento
• Santa Rosa
• San Mateo County
• Sonoma County

Finally, Seattle, Washington passed a local ordinance requiring paid sick leave for certain gig workers in “Food Delivery Network” and “Transportation Network” companies who are employing 250+ gig workers worldwide and operating in the City of Seattle.

What does this mean for employers?

With all these changes happening in the paid leave realm related to COVID-19, employers in the U.S., especially those operating in more than one location, will need to keep up to date on new paid leave requirements for your impacted employees.

Employers can consider how their long-term strategies related to paid sick leave and paid family leave may be able to help manage this constantly evolving area. For example, employers could consider adding a COVID-19 specific category to a comprehensive tracking sheet for your workforce and periodically checking for updates. Another strategy that often helps is to adopt a paid leave program that is at least as generous as the strictest local requirements. Employers should make sure to consult with their human resources and employment advisors to come up with an approach that works best for them.

Disclaimer: The information provided in this post is provided for informational purposes only and should not be relied upon or construed as legal advice and does not create an attorney-client relationship. You should review with your legal advisors how the laws identified in this post may apply to your specific situation.