The Changing Landscape Of Paid Sick Leave In The Covid-19 Era

What paid sick leave mean for employers?

While there is no permanent federal paid sick leave mandate for private employers, (unless a federal contractor), several states and localities have taken matters into their own hands by adopting their own paid sick leave laws, with varying requirements. From coast to coast, states, cities and counties have passed paid sick leave laws affecting private employers, and the paid sick leave legal landscape continues to evolve. 
 

When an employer operates or has employees in a jurisdiction that requires paid sick leave, it needs to carefully check the law's requirements. For employers that operate in multiple locations that have paid sick leave laws, this can be a daunting task, as each law has its own standards regarding which employees are covered, which employers must comply, how employers must comply and more.

While many of the laws share commonalities, they all have unique provisions that force employers to monitor changes not only to their state laws, but also to their local laws. In addition, employers need to track legal developments regarding these laws since several of them have been challenged in the courts, delaying or preventing their implementation. In addition, a few states have banned localities from passing paid sick leave laws via municipal preemption restriction.

When a law is enacted, an employer must figure out if and how these laws interact with each other (and in some cases, other laws) and adjust business practices accordingly. Multijurisdictional employers need to consider whether they want to provide all employees, regardless of their location, with the most generous sick leave policy or else administer a patchwork of policies depending on where the employees work.

Qualifying Reasons To Take Leave

Once an employer determines it is required to comply with a paid sick leave law and which employees are eligible for leave, employers need to understand the qualifying reasons an employee may take leave, since those reasons vary. Under most paid sick leave laws, eligible employees may take leave for the diagnosis, care or treatment of their own or a covered family member's mental or physical illness, injury or health condition, or to receive preventive medical care. Who is a covered family member varies greatly across the jurisdictions.

In locations such as Michigan, Minneapolis, Minnesota; New Jersey; New York City, New York; Washington; and Vermont, employers must also allow paid sick leave to be used in connection with the closure of an employee's workplace or an employee's child's school or daycare due to a public health emergency.

In addition, a number of paid sick leave laws include safe leave provisions. Safe leave typically covers situations related to domestic violence, sexual assault and/or stalking. Some jurisdictions only permit leave when the domestic violence, sexual assault or stalking incident happens to the employee, whereas other jurisdictions also permit leave when an incident happens to an employee's family member. Some jurisdictions allow an even broader range of reasons employees may take leave.

Supervisors, managers and HR representatives should be aware of all of the qualifying reasons for leave available under state or local law so they can properly designate or deny a leave request.

In addition, be aware of when documentation may be requested from an employee, accrual requirements and any notice-posting requirements. 

Covid-19 Leave Protections

In light of the pandemic, the federal government passed the Families First Coronavirus Response Act (FFCRA), which required covered private employers to provide eligible employees with job-protected paid sick leave due to certain qualifying conditions related to the Covid-19 pandemic. The FFCRA was only temporary and expired on December 31, 2020. However, if an employer voluntarily continues to offer paid sick leave under the FFCRA framework, it can claim payroll tax credits for wages paid to employees on leave through September 30, 2021.

Further, a number of states and localities issued various employee paid sick leave measures including:
 

• Temporary emergency laws and ordinances;
• Permanent laws and ordinances; and
• Amendments expanding existing laws or ordinances.

The reasons an employee may be eligible to use paid sick leave under these temporary includes: 
 

• They are quarantining or isolating due to exposure to Covid-19 or are caring for someone who is quarantining or isolating due to Covid-19; 
• They are experiencing symptoms of Covid-19 and seeking a medical diagnosis;
• They are attending an appointment to get vaccinated or recovering from vaccine side effects;
• They are caring for their children when their school or place of care are closed or otherwise unavailable for reasons related to Covid-19.

Several of these laws and ordinances filled a gap left by the FFCRA by providing paid sick leave to employees who work for large employers (e.g. Long Beach, California). Further, some laws also provide protections for individuals who were not covered under FFCRA. For instance, Seattle, Washington passed an ordinance temporarily providing paid sick leave for gig workers during the Covid-19 emergency. 

In addition, a number of states and localities have issued rules, guidance, FAQs and fact sheets to assist employers in complying with their respective leave laws. 

Employers need to monitor legal developments that emerge as new laws may be passed as the Covid-19 pandemic continues.

Expanded Leave Rights

Employers should be aware that they may soon be required to provide benefits that go beyond paid sick leave and provide paid leave for any reason. Maine was the first state to pass such a law, which applies to employers with 11 or more employees. No qualifying reasons for taking leave are defined in the law, meaning employees may take paid leave for sick and safe reasons and beyond (e.g., needing to take care of a home repair). Similarly, Nevada’s law, requires employers with 50 or more employees in the state to provide paid leave that employees may use for any reason. 

Bernalillo County, New Mexico, was on the verge of passing a paid sick leave ordinance and instead amended it to provide eligible employees with earned paid time off for any reason. These laws are similar to traditional paid sick leave laws in many ways. For instance, employees accrue leave time based on hours worked (e.g., one hour of paid leave for every 40 hours worked under Maine law), but maybe required to wait before they are allowed to begin using their accrued time (e.g., 90 days in Nevada). Employers may need to adjust their policies if they are subject to one of these laws.

Create or Update Leave Policies

An employer should familiarize itself with the paid sick leave law(s) for the state or municipality in which it conducts business, or has employees working in, and then either: 
 

• Prepare a new policy that complies with the law; or 
• Modify an existing sick leave or paid time off (PTO) policy.

Most paid sick leave laws allow an employer to use an existing sick leave or PTO policy that applied to employees before the effective date of the paid sick leave law, as long as the policy matches or exceeds the law's requirements in terms in the amount of leave, the reasons leave may be taken and accrual, and does not require more from the employee than required in the law regarding notice, certification and other requirements.

A multijurisdictional employer must decide if it will comply with each law separately for covered employees, or if it will prepare one single, universal paid sick leave policy that meets the legal requirements for all applicable paid sick leave laws.

Monitor Paid Sick Leave Legislation

Employers should only expect the number of jurisdictions mandating paid sick leave to grow. The concern with the patchwork of sick leave laws popping up across the country is, of course, ensuring compliance, particularly for companies that operate in multiple locations. Employers need to do a lot of homework and fully understand all the nuances before implementing any policies or practices regarding sick leave.

Melissa Silver is the Legal Editor for the employment offer, terms of employment, new hire paperwork, negligent hiring, onboarding and orientation, recordkeeping and minimizing liability content in the recruiting and hiring chapter of XpertHR USA.  Visit www.xperthr.com  Connect Melissa Silver  Follow @MelissaSilver10