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California Passes COVID-19 Supplemental Paid Sick Leave Law

On September 9, California Governor Newsom signed a bill that establishes COVID-19 supplemental paid sick leave (“COVID-19 PSL”) for California workers generally not covered by the federal Families First Coronavirus Response Act (“FFCRA”).

Important Dates

Employers are required to begin providing COVID-19 PSL by September 19.

Employers must also post a notice in their workplace by September 19.  If employees are not physically present in the workplace, the employer may disseminate the notice electronically.

Starting in the first pay period after September 9, employers must provide notice in a wage statement (or a separate writing provided on pay day) of an employee’s available COVID-19 PSL each pay period.

The requirement to provide COVID-19 PSL expires on December 31, 2020 or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA.

Covered Employers & Employees

California’s new law applies to private employers with 500 or more employees in the United States.  It also applies to any public or private entity that employs health care providers or emergency responders and that has elected to exclude such employees from emergency paid sick leave under the FFCRA.

Workers are entitled to COVID-19 PSL only if they are (1) employed by a covered employer AND (2) leave home to perform work for their employer.

Reasons for Leave

Employees are entitled to COVID-19 PSL when they are unable to work because they:

  • are subject to a federal, state, or local quarantine or isolation order related

U.S. COVID-19: DOL Issues FFCRA Guidance Regarding School Reopening Plans

Last week, the Department of Labor (“DOL”) published guidance (Q&A #s 98-100) on the impact of various school reopening plans on employees’ entitlement to leave under the Families First Coronavirus Response Act (“FFCRA”).  As anticipated, leave rights depend on the specific circumstances, with the key being whether the school is “closed” (not available for the child to attend in person):

  • No In-Person Program: If the school is not offering any in-person instruction and instead is providing only remote learning (aka virtual learning; e-learning; distance learning) to students, then an employee will have a qualifying reason for leave.
  • Hybrid Program: If the school is providing a hybrid program pursuant to which students are receiving in-person instruction on some days and doing remote learning on other days (such as alternating days or weeks in the classroom vs. at-home), then an employee will have a qualifying reason for leave but only on the days when in-person instruction is not available to their child.
  • Choice Between In-Person or Remote Program: If the school provides families with a choice between an in-person program or a remote program, and the employee chooses the remote option, the employee will not have a qualifying reason for leave.  This is true regardless of the reason for the employee’s choice (e.g., choosing remote learning due to fear of exposure to COVID will not provide a qualifying reason for leave when in-person learning is available).

Importantly, even when the school is closed, an employee will still be

US COVID-19: Remember the FMLA: DOL Issues New Q&A on COVID-related FMLA Issues

With all of the attention being given to COVID-19-related leave under the Families First Coronavirus Response Act (“FFCRA”), we mustn’t forget the (traditional) Family and Medical Leave Act (“FMLA”).  To remind us, the federal Department of Labor (“DOL”) recently issued new FMLA Q&A on COVID-19-related subjects.

COVID-19 Testing:  The DOL clarified that the FMLA’s “reinstatement” requirement does not interfere with an employer’s ability to require all employees to take a COVID-19 test before coming to the office.  (See Q&A #13.)  This is because employees who have taken FMLA leave are still subject to the same actions that would have applied to the employee had the employee not taken FMLA leave.

For BCLP discussions about what the federal Equal Employment Opportunity Commission (“EEOC”) has said about COVID-19 related testing, see this blog post on 4 Takeaways from the EEOC’s New Guidance on Antibody Testing, Older Workers, and Accommodations and this one on EEOC Updates COVID-19 Guidance, Permitting Employers To Administer COVID-19 Tests and Clarifying Accommodation Obligations.

Telemedicine:  The DOL clarified that, until December 31, 2020, and in light of the current pandemic-related demands on health care providers and PPE/supplies, “telemedicine” visits will count as “in-person visits” for FMLA purposes.  (See Q&A #12.)  This decision is significant because one of the common categories of serious health condition under the FMLA – “incapacity plus treatment” – requires certain “in-person” visits to a health care provider.  According to the DOL, a telemedicine visit will constitute an in-person visit as long as

New FMLA Forms Available From DOL

First, the bad news:  As if HR personnel who are responsible for managing leave requests aren’t already stretched thin due to COVID-19 issues, they now have another item for their to do list:  Become familiar with, and begin using, new Family and Medical Leave Act (“FMLA”) forms issued late last week by the federal Department of Labor (“DOL”).

Now, the good news:  Overall, despite being longer and wordier, the new FMLA forms appear likely to be embraced by employers, employees, and medical providers alike for being more clear, helpful, and user-friendly than prior versions.

The new FMLA forms are available on the DOL’s website.  They include revised versions of the following forms:

  • Combined Eligibility Notice / Notice of Rights and Responsibilities (WH-381);
  • Designation Notice (WH-382);
  • Certification of Health Care Provider (one for employee’s own serious health condition; one for leave relating to care of a covered family member; WH-380 E and WH-380 F);
  • Certification of Military Family Leave (including forms relating to Qualifying Exigency leave and leave relating to a Current Servicemember or Veteran; WH-384 and WH-385/WH-385-V).

One overarching revision is that each form now includes more “explanatory” language relating to FMLA rights and obligations.  For example, the Eligibility Notice includes a description of the eligibility rules and definitions of such key terms as “spouse,” “child” and “parent.”  The Rights and Responsibilities Notice (which, as before, is combined with the Eligibility Notice) includes expanded explanations regarding the substitution of paid

U.S. COVID-19: New FFCRA Q&A – Key Takeaways Regarding the “Need” for Leave, Joint Employers and Domestic Workers

The federal Department of Labor (“DOL”) is closing in on 100 informal “questions and answers” (the “Q&A”) relating to the Families First Coronavirus Response Act (“FFCRA”), having issued Q&A #s 89-93.  The new Q&A address steps employers may take when determining whether employees truly “need” FFCRA leave; issues relating to domestic workers; and a reminder for joint employers that prohibitions on adverse action, interference and retaliation may apply even to employers who are not covered by the FFCRA.

Determining Whether Employees Have A Qualifying Reason For Leave

Three of the five new Q&A provide critical guidance for employers on permissible questions and documentation requirements to ensure that leave is being taken in appropriate circumstances.

In the first Q&A (# 91), the DOL posits a factual scenario in which an employee with children has been teleworking productively for several weeks despite school closings, but then requests FFCRA leave.  The hypothetical employer wonders:  Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?”  The DOL responds affirmatively, indicating that an employee may be asked “to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work.”

Employers should “exercise caution” in this area, however, because, according to the DOL, the more questions asked, the greater “the likelihood that any decision denying leave based on that information is a prohibited act.”  There are many reasons why an employee may not have initially

U.S. COVID-19: As the FFCRA Goes Live, the DOL Continues to Publish Revised and New Guidance for Employers

Although the federal Department of Labor (“DOL”) declared April 1 – 17 to be a temporary period of non-enforcement of the Families First Coronavirus Response Act (“FFCRA”), the DOL was far from idle during that period.  To the contrary, the DOL hosted an FFCRA webinar, published versions of the required FFCRA poster in additional languages, and actively encouraged employers and employees to become familiar with the FFCRA through posts on social media.  Importantly, the DOL also provided key revised and new guidance for employers by: (1) issuing technical corrections to the temporary rule; and (2) posting additional informal questions and answers (the “Q&A”).

As described below, this new guidance provides much-needed clarity on key issues, especially since the period of non-enforcement is now over.

Interplay Between the FFCRA and Employer Paid Leave Policies

Although the rules remain complicated and not entirely clear, there is now more information regarding whether and when an employee may choose, or an employer may require, leave under an employer’s existing paid leave policies to be used before, concurrently with, or as a supplement to, the use of leave under the Paid Sick Leave (“PSL”) and Emergency FMLA (“EFMLA”) provisions of the FFCRA.

In this context, “concurrently” means “to cover the same hours as.”  In other words, to the extent various types of leave run concurrently, then the employee’s leave entitlement is used / reduced under both types of leave at the same time.  “Supplement” means that paid leave under an employer’s

Comparing Paid Sick Leave under U.S. and New York State Coronavirus Response Laws

The federal Families First Coronavirus Response Act (“FFCRA”), enacted March 18, 2020, and effective April 1, 2020, provides for two types of leave for employees of private employers with fewer than 500 employees: Paid Sick Leave (for six specified reasons related to COVID-19) and Emergency Family and Medical Leave Act (“EFMLA”) leave (to care for an employee’s son or daughter whose school or child-care facility is closed, or child care provider is unavailable, due to a public health emergency).

The New York State Paid Quarantine Leave Law (“NY Quarantine Law”), enacted and effective March 18, 2020, provides for sick leave when an employee is subject to a mandatory or precautionary governmental quarantine or isolation order due to COVID-19 (“Quarantine Order”).  Under the NY Quarantine Law, employers with 1-10 employees and $1,000,000 or less in net income in the previous tax year (Tier 1)  must provide unpaid sick leave for the duration of the Quarantine Order; employers with 11-99 employees and employers with 1-10 employees and a net income greater than $1 million in the previous tax year (Tier 2) must provide at least 5 days of paid sick leave plus unpaid sick leave for the duration of the Quarantine Order; and employers with 100 or more employees, as well as all public employers (regardless of number of employees) (Tier 3) must provide at least 14 days of paid sick leave. The legislative history of the law indicates that only employees who work in New York should be counted to determine employer obligations.

U.S. IRS Publishes Much-Anticipated Guidance on Documents that Employers Must Retain Under the Families First Coronavirus Response Act

The Families First Coronavirus Response Act (“FFCRA”), which generally requires U.S. employers with fewer than 500 employees to provide paid sick leave (“Paid Sick Leave”) and emergency family and medical leave (“Emergency FMLA Leave”) benefits to employees in connection with COVID-19, officially goes into effect today.  This also means that employers are now able to immediately seek a quarterly payroll tax credit equal to 100% of the qualified Paid Sick Leave and Emergency FMLA Leave wages paid to employees under the FFCRA.

As we summarized in an earlier post, this past weekend the Department of Labor (“DOL”) revised its guidance to refer employers to the Internal Revenue Service (“IRS”) for questions regarding what documentation employers must retain in order to receive a tax credit.  Late on March 31, 2020, the IRS published this much-anticipated guidance.  Below are highlights from the IRS’s guidance on document collection and retention for employers to consider as they begin to comply with the FFCRA.  Summaries of other aspects of the IRS’s guidance will be available soon.

  • Leave for Which Tax Credits are Available: The IRS guidance confirms that tax credits are available only for Paid Sick Leave and Emergency FMLA Leave taken between April 1, 2020 and December 31, 2020.  Moreover, tax credits are available only for Paid Sick Leave and Emergency FMLA Leave wages that are actually paid.  For example, if an employer is not required to pay certain Paid Sick Leave and/or Emergency FMLA Leave wages (because

Families First Coronavirus Response Act: Emergency Family and Medical Leave Provisions (Part 2 of 2)

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “FFCRA or Act”).  The FFCRA provides for two types of leave for employees:  Paid Sick Leave (up to 80 hours) and Emergency Family and Medical Leave (up to 12 weeks of combined paid and unpaid leave).  This post is part 2 of 2 summarizing the requirements of the FFCRA and focuses on Emergency Family and Medical Leave.

  • Scope: Unlike the paid sick leave provisions of the FFCRA, the emergency family and medical leave provisions are not standalone law.  Rather, these provisions amend the Family and Medical Leave Act (“FMLA”), thus providing for “Emergency FMLA” leave.  However, the amendments (such as the changed definition of Covered Employer and Eligible Employee) apply only to Emergency FMLA provisions and do not amend the pre-existing provisions of the FMLA.
  • Effective Dates: The Act will become effective no later than April 2, 2020 and expire on December 31, 2020.
  • Covered Employer: Anyone who has fewer than 500 employees[1] and otherwise satisfies the elements of the definition of “Employer” under the FMLA.[2]
    • EXCEPTIONS:
      • DOL may issue guidance excluding employers with fewer than 50 employees from the requirement to provide Emergency FMLA, if the Emergency FMLA would “jeopardize the viability of the business as a going concern.”
      • Regardless of whether such guidance is issued, employers with fewer than 50 employees will not be subject to an FMLA action by employees for failing to provide

Families First Coronavirus Response Act: Paid Sick Leave Provisions (Part 1 of 2)

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “FFCRA or Act”).  The FFCRA provides for two types of leave for employees:  Paid Sick Leave (up to 80 hours) and Emergency Family and Medical Leave (up to 12 weeks with a combination of paid and unpaid leave).  This post is part 1 of 2 summarizing the requirements of the FFCRA and focuses on Paid Sick Leave. 

  • Effective Dates: The Act will become effective no later than April 2, 2020 and expire on December 31, 2020.
  • Department of Labor (“DOL”) Obligations: Must issue a “Model Notice” for employers to post within 7 days of enactment and guidance within 15 days of enactment.
  • Covered Employer – Anyone engaged in commerce with fewer than 500 employees,[1] as defined under the Fair Labor Standards Act (“FLSA”).
    • EXCEPTION – The DOL may issue guidance excluding employers with fewer than 50 employees from the paid leave requirements of the Act if the paid sick leave would “jeopardize the viability of the business as a going concern.”
  • Eligible Employees – All employees (as defined under the FLSA), regardless of length of employment, and regardless of whether full-time or part-time.
    • EXCEPTION: If an employee is a healthcare provider or an emergency responder, the employer may choose not to provide paid sick leave to those employees.  (The DOL may issue guidance on this point.)
  • Affirmative Requirements for Employers under the Act:
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