State and Local Leave Initiatives and Responses to the COVID-19 Pandemic

In addition to the federal government action to provide paid leave to workers impacted by the coronavirus (COVID-19) outbreak, numerous states and local governments have proposed, and in a few cases enacted, additional leave laws that would also benefit impacted workers. These proposals generally expand currently existing sick leave/family leave, add protections for infected or quarantined employees, or, in at least two states, propose entirely new and permanent paid sick leave laws. The descriptions below cover both enacted laws and pending bills.

EXPANDING LEAVE ELIGIBILITY AT THE STATE AND LOCAL LEVEL

• New York: On March 18, 2020, New York State enacted legislation that would provide (i) paid sick leave, and (ii) job protections/paid family leave eligibility for employees “subject to a mandatory or precautionary order of quarantine or isolation” (Quarantine) issued by a government entity due to COVID-19. However, the legislation does not provide benefits to employees who are asymptomatic or employees not yet diagnosed with “any medical condition” who can physically work while subject to a Quarantine (e.g., remotely). The legislation takes effect immediately such that paid sick leave can be taken beginning on March 19, 2020.

Under this law, employees subject to a COVID-19 related Quarantine would be provided with paid sick leave in varying increments as follows based on the size of the employer:

• Employers with 10 or less employees and an annual net income of $1 million or less: Unpaid sick leave for duration of the Quarantine
• Employers with 10 or fewer employees and an annual net income of more than $1 million annually: five days of paid sick leave
• Employers with between 11 and 99 employees: five days of paid sick leave
• Employers with 100 or more employees: 14 days of paid sick leave

Notably, the paid sick leave provided under this law cannot result in the loss of “accrued sick leave” – meaning any existing paid sick leave offered by the employer (pursuant to New York City law or otherwise) cannot run concurrently with paid sick leave under this law.

Second, employees eligible for paid sick leave in any amount will also be eligible for job protection and certain wage replacement benefits for the remainder of any Quarantine not covered by paid sick leave. Specifically, after an employee exhausts their paid sick leave entitlement under this law, the employee can combine and concurrently receive New York Paid Family Leave (NYPFL) and short-term disability (STD) benefits for the remainder of the Quarantine. Additionally, employees can use NYPFL wage replacement benefits (but not paid sick leave or STD benefits) if the employee needs time off to provide care for their minor or dependent child provided the minor or dependent child is subject to a Quarantine. Therefore, the law does not create a leave or wage replacement benefit for parents who need time off to care for a child due to a school closure unless the child is specifically subject to a Quarantine requirement. NYPFL and STD benefits would be payable immediately upon the first day of unpaid leave. Solely for COVID-19-related uses of NYPFL and STD, the maximum benefit will be $840.70 per week in NYPFL benefits and $2,043.92 in STD benefits – constituting wage replacement of up to $150,000.

Importantly, the legislation expressly provides that the benefits would run concurrently with any paid sick leave and/or employee benefits passed by the federal government with respect to COVID-19. If an employee is also eligible for such federal leave or benefits, the employee would only receive additional sick leave and/or benefits under this law in the amount of the difference between the federal benefits and the benefits provided in the legislation (to the extent they exceed federal benefits.)

Finally, provided that the employer informs employees in advance of personal travel, if the employee travels to a country listed as Level 2 or Level 3 on the CDC travel advisory for personal reasons and is subject to a Quarantine upon return, the employee will not be eligible for paid leave or benefits (but would still be eligible for protected unpaid leave).

• California: A bill introduced by Democratic State Assembly member Ash Kalra would prohibit employers from refusing employee requests to use family leave for COVID-related purposes.

The bill would allow an employee to take unpaid leave or use paid time off to care for a family member with COVID-19. An employee taking leave could elect a substitution of the employee’s accrued vacation or other time off during the period of absence. However, employees would not be able under the law to use sick leave during a period of leave to care for a family member with COVID-19.

The bill would further require employers to maintain and pay for employee health coverage during the leave period. Employees taking leave under the law would retain their employee status, and the leave would not constitute a break in service.

The law, once enacted, would remain in effect until January 1, 2022.

• New Jersey: Under proposed New Jersey legislation, an employer would be prohibited from terminating or penalizing employees for requesting or taking time off from work for the duration of New Jersey’s COVID-19 Public Health Emergency and State of Emergency. An employee would need to obtain the recommendation of a New Jersey-licensed medical professional that the employee take time off for a specified number of days for an actual or likely “infectious disease” (defined as “a disease caused by a living organism or other pathogen, including a fungus, bacteria, parasite, protozoan, virus, or prion”) which may infect others at the employee’s workplace. The legislation does not specify if time off would be paid or unpaid. Upon return to work, the employee would need to be reinstated to the same position held before the leave, with the same terms and conditions of employment.

The legislation would create a private right of action to seek reinstatement and also allow an employee to file a complaint with the New Jersey Commissioner of Labor and Workforce Development. A violation would subject an employer to a $2,500 fine and required reinstatement of the employee.

The law, once enacted, would take effect immediately.

In addition, New Jersey’s Department of Labor recently updated its guidance and specifically permits employees who test positive or have symptoms of COVID-19 and are unable to work to use accrued, unused earned sick leave time under the New Jersey Earned Sick Leave Law.

• Maryland: The House and Senate of the Maryland General Assembly are currently considering emergency legislation that would prohibit an employer from terminating an employee solely on the basis that the employee has been required to be isolated or quarantined because of COVID-19.
• Colorado: At the direction of Colorado Gov. Jared Polis, the state’s Department of Labor and Employment adopted an emergency rule on March 11 that temporarily requires employers in certain industries to provide up to four consecutive calendar days of paid sick leave to allow sick employees to obtain COVID-19 testing.

Covered industries include (1) leisure and hospitality; (2) food services; (3) child care; (4) education (including transportation, food service, and related work with educational establishments); (5) home health (specifically those working with high-risk populations like the elderly); (6) nursing homes; and (7) community living facilities.

The rules do not require an employer to offer additional days of paid sick leave if the employer already offers all employees at least four days of paid leave. However, an employee who has already exhausted his or her paid leave must be allowed to take leave for testing, assuming the employee has flu-like symptoms that warrant a test.

The emergency rule allows the Colorado Department of Labor to bring actions against noncompliant employers.

• Kentucky: Kentucky State Sen. Morgan McGarvey introduced legislation on March 4 that would (i) declare a statewide emergency, and (ii) establish a permanent paid leave system to respond to the COVID-19 epidemic. The bill would require Kentucky employers—who currently have no obligation to provide sick leave to employees—to provide 1.5 hours of paid sick days for every 30 hours worked. To be eligible, employees would have to complete 120 hours of employment with the same employer, or spend at least 30 days employed (whichever occurs later).

The bill has no sunset period, even though it is framed as an emergency legislation.

• Pennsylvania: As in Kentucky, lawmakers in Pennsylvania have proposed legislation that would create a permanent paid-leave system requiring employers to provide a minimum of one hour of paid sick leave for every 40 hours worked by an employee. Employers would not be required to provide more than 52 hours of sick leave for an employee in any given calendar year. The bill does not have a sunset provision.

CITIES EXPAND PAID SICK LEAVE

In addition, some cities have expanded paid sick leave protections to include more workers.

• San Francisco/California: San Francisco Mayor London N. Breed announced on March 16 the Workers and Families First Program, which would provide $10 million to fund sick leave for employees who are either (1) sick with COVID-19; (2) self-quarantined to prevent spread of COVID-19; (3) caring for a sick family member; (4) home because of a temporary work closure in response to a public official’s recommendation; or (5) caring for a child who is home because of school/daycare closures in response to a public official’s recommendation.

The program is available only to employees who have exhausted their currently available sick leave and are not eligible for supplemental federal or state sick leave, and the employer agrees to extend sick leave beyond current benefits.

All San Francisco businesses are eligible to receive funding, with up to 20% of funds reserved for small businesses with 50 or fewer employees. The city will contribute up to one week at $15.59 per hour per employee (the current city minimum wage) or $623 per employee. The employer will pay the difference between the minimum wage and the employee’s full wage.

On a broader level, California’s Department of Industrial Relations clarified that employers cannot require quarantined employees to use paid accrued sick leave, but employees may choose to do so.

• Philadelphia: Philadelphia Mayor Jim Kenney announced on March 11 a “Declaration of Extraordinary Circumstance” suspending the formal regulatory process and allowing the mayor’s office to fast-track rules to address the pandemic. On March 16, the mayor’s Office of Labor used that power to expand the city’s currently-existing paid sick leave to cover those who cannot work because of a COVID-19-related business closure or quarantine, or because they have to stay at home with their children during school closures.

Philadelphia’s current paid sick leave law allows eligible employees to earn one hour of sick time for every 40 hours worked, with a maximum of 40 sick time hours earned in a calendar year. The ordinance applies to employers with 10 or more employees. It does not include independent contractors or employees covered by a collective bargaining agreement.

How We Can Help

Morgan Lewis is tracking all COVID-19 related developments on a state and local level, including the growing number of jurisdictions issuing restrictions on employer operations and those providing guidance on the use of sick leave to help cover absences related to COVID-19. If you have any questions, would like to discuss which jurisdictions have developed or created new laws as a result of the COVID-19 outbreak, or need additional information on the contents of this LawFlash, please contact any of the Morgan Lewis lawyers listed below.

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Jacqueline C. Aguilera

New York
Kimberley E. Lunetta
Douglas T. Schwarz

Philadelphia
A. Klair Fitzpatrick
Michael J. Puma

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Michelle Seldin Silverman

Silicon Valley
Alicia J. Farquhar
Michael D. Schlemmer