U.S.: Exercising State Sick Leave Laws in the Wake of COVID-19
Currently, there is no national requirement to offer paid sick leave in the U.S. but certain states have enacted laws to provide sick leave to employees. The Federal Family Medical Leave Act (FMLA) entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons, which may include the flu where complications arise that create a “serious health condition” as defined by the FMLA.
12 states and the District of Columbia currently require employers to provide paid sick leave to their employees. In addition, nearly 24 cities and counties in total have paid sick leave laws. 8 states and the District of Columbia have family and medical leave insurance laws that are similar to the federal law.
We will try to explore some of the state-regulated sick leave options available to employees during COVID-19.
Paid sick leave law provides employees who work in California for a minimum of 30 days within a year from the beginning of employment with paid sick leave. Employees, including part-time and temporary employees, will earn at least one hour of paid leave for every 30 hours worked. An employer may limit the amount of paid sick leave an employee can use in one year to 24 hours or 3 days. Further, an employer must allow accrued unused paid sick leave to be carried over to the next year, but a cap on carryover hours of no less than 48 hours or six days is permitted.
Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member. Preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities. If the employee has paid sick leave available, the employer must provide such leave and compensate the employee.
If an employee does not qualify to use paid sick leave or has exhausted sick leave, other leave options may be available. If there is a vacation or paid time off policy, an employee may choose to take such leave and be compensated provided that the terms of the vacation or paid time off policy allows for leave in this circumstance.
Employees are entitled to one hour of paid sick leave for every 40 hours of work and can use accrued paid sick leave beginning on the 90th calendar day after the start of their employment. Employees are entitled to use accrued paid sick leave for authorized purposes listed in RCW 49.46.210(1)(b) and (c). Hence, by extension of the said provisions:
- If the employee is ill or is experiencing symptoms that may be COVID-19 related,
- If their place of business is shut down or if a school by a public health officer
- If the place of care of an employee’s child is temporarily closed by a public health officer.
When this leave is not available or is already exhausted, Paid Family & Medical Leave may be availed.
The Maryland Healthy Working Families Act requires employers with 15 or more employees to provide paid sick and safe leave for certain employees. Leave accrues at the rate of one hour for every 30 hours that an employee works and an employee is entitled to accrue 40 hours of sick and safe leave in a year regardless of the number of hours worked. Maryland employers who employ 14 or fewer employees are required to provide unpaid sick and safe leave for certain employees. Hence, the first and best option for employees who need to miss work due to the illness is to use their employer-paid time off.
The State in response to COVID-19 has put Flexible Operations of the Pandemic Flu and Other Infectious Diseases Attendance and Leave Policy in place, hence it is expected that all affected employees who are able to work from home will do so in accordance with the interim telework agreement and shall be compensated for doing so at their regular rate of pay.
The State has recently passed a COVID-19 emergency response package and is also working on changing the earned sick time law and the Parental and Family Leave Act in the wake of COVID -19. The changes, when effective, ensure that employees who are forced to take COVID-19 related leave are eligible for benefits, and also give employers relief for some of the costs related to paid leave. This is likely to take effect on July 1, 2020. The provisions were amendments to H.681 (legislation on employer registration for unemployment insurance).
Meanwhile, eligible employees can avail the paid sick leave benefit under Act 69 (H 187), wherein employees accrue one hour of paid sick time for every 52 hours worked and can use up to 40 hours.
New Jersey has a comprehensive Earned Sick Leave, which covers all employees – full-time, part-time, temporary and seasonal. Employees accrue one hour of paid sick time for every 30 hours worked and can accrue up to 40 hours a year.
New Jersey’s Earned Sick Leave Law also covers public health emergencies wherein employees can use Earned Sick leave if their workplace or child’s school or daycare is closed due to an epidemic, or if a public health authority determines the need for quarantine. Hence the employees can utilize the earned sick leave benefit as a result of potential exposure to any of the COVID-19 related situations.
Arizona State paid sick leave provisions to provide for situations of public health emergencies. According to A.R.S. §23-373- where an employer closes a facility because it is ordered to do so by a public health official due to a public health emergency, all affected employees would be entitled to use their earned paid sick time while they are not working because of the closure.
Furthermore, not only would a forced closure of the workplace trigger obligations on employers to pay earned sick leave benefits, but the closure of your employee’s children’s schools also would require employers to offer paid sick leave to employees who need to stay home to care for the children. Also, employers must provide mandatory sick leave benefits to employees who need to care for a family member, who has been declared by a health care provider, jeopardize the health of others because of exposure to a communicable disease, even if neither the employee nor the family member actually has the disease.
As we can see, some of the state-level requirements explicitly apply to public health emergencies, as in the case of Arizona, New Jersey, Oregon, Rhode Island, Vermont, and Washington.
Michigan’s Paid Medical Leave Act allows employees to take paid medical leave related to the closure of the workplace by order of a public official due to a public health emergency, to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency, or if it has been determined by health authorities that the employee or the employee’s family member’s presence in the community would jeopardize the health of others.
Other states that have similar provisions, which require employers to provide general paid time off for workers to use as needed, including for sick leave which can be used in situations of public health emergencies, are Maine and Nevada.
Certain states which do not have an already existing state paid sick leave are resorting to ad hoc sick leave policies in the wake of COVID-19. For eg:
The DLE issued the Colorado Health Emergency Leave with Pay (“HELP”) Rules, which mandates that, effective March 11, 2020, 4 days of paid sick leave for employees in certain industries who have flu-like symptoms to receive COVID-19 testing.
The paid sick leave ends if an employee receives a negative COVID-19 test result. If an employer already provides sufficient paid sick leave to meet these requirements, no additional sick leave is required, unless the employee has already exhausted paid leave and qualifies for leave under the HELP Rules. The HELP Rules will remain in effect for the longer of 30 days or the duration of the state of emergency, up to 120 days after the adoption of the rules.
Please find the state-wise action plan and proposals in relation to COVID-19: State Action on Coronavirus (COVID-19)
As a unified response to the COVID-19 coronavirus outbreak, the Families First Coronavirus Response Act has been passed. This Act will require employers with fewer than 500 employees and government employers to provide employees with “emergency paid sick leave” for COVID-19 related purposes. Further to that, it also provides employees with paid sick leave through the use of two brand new laws: the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. It requires most private employers to give their employees 7 days of paid sick leave, with an additional 14 days available immediately in the event of “public health emergencies” and up to 3 months of paid family and medical leave. The benefit would expire in January 2021.
The new emergency legislation goes into effect on April 2, 2020, and till then, paid leave in the U.S., during COVID-19 will depend on what policies the individual companies mandate and the benefits offered by the state or local jurisdictions.