In response to the coronavirus (COVID-19) pandemic, states have passed new laws and issued new regulations and guidance about employee leave taken for COVID-19 reasons. These provisions are in addition to the federal Emergency Paid Sick Leave and Emergency Family and Medical Leave Expansion requirements passed on March 18 as part of the Families First Coronavirus Response Act (FFCRA).
In general, employee leave permitted under new state COVID-19 rules and guidance varies with respect to factors like the employers and employees covered by the leave, the length and purpose of the leave, whether the leave is compensated and at what rate, and whether the leave is provided under a new law or rule, or covered under an existing provision.
This Compliance Bulletin briefly describes new state employee leave provisions and guidance enacted or issued in response to the COVID-19 pandemic, along with links to government resources providing further information. Information about similar measures in select major cities is also included. The document will be updated with additional new employee leave rules in this rapidly changing compliance area.
The state has issued FAQs on the application of various employment laws and programs—including the state’s paid sick leave and family leave requirements—to workers and businesses affected by COVID-19.
District of Columbia
The District’s Accrued Sick and Safe Act was amended to include the requirement that employers with between 50 and 499 employees must provide employees with up to 80 hours of paid public health emergency leave. The requirement is effective beginning April 10, 2020, and for the duration of the COVID-19 emergency declared by the mayor. The leave is available for the same reasons emergency paid sick leave is permitted under the FFCRA; employees must have worked for their employer for at least 15 days to be eligible.
Employees may only use the leave concurrently with or after exhausting any other paid leave for which they are eligible for covered reasons under federal law, District law or an employer's policies. In addition, employers may reduce an employee’s public health emergency leave by the amount of such other paid leave the employee has taken. If leaves are taken concurrently, the employer may reduce the employee’s emergency health leave pay by the amount of compensation the employee receives under the other concurrent leave.
Employers that are health care providers are exempt from the requirement. Employers may require employees to provide reasonable notice of the need for leave in the event of an emergency, and 48 hours’ notice for other reasons. Employers who contribute to an employee’s health insurance may require certification of the employee’s need for three or more consecutive days of leave, but the employee has one week after returning to work to provide the certification.
The District also expanded the DC Family and Medical Leave Act (DCFMLA) to allow workers who have been employed by their employer for at least 30 days to use up to 16 weeks of unpaid COVID-19 leave due to:
A health care provider’s recommendation that the employee isolate or quarantine, including because the employee or an individual with whom the employee shares a household is at high risk for serious illness from COVID-19;
A need to care for a family member or an individual with whom the employee shares a household who is under a government or health care provider’s order to quarantine or isolate; or
A need to care for a child whose school or place of care is closed or whose childcare provider is unavailable.
The right to COVID-19 leave ends when the public health emergency has ended, even if an employee has not exhausted the 16-week entitlement. The requirement applies to all employers, regardless of the number of employees they employ in the District. Employers may require certain certifications, and any paid leave used by an employee for COVID19 family and medical leave purposes counts against the 16 workweeks of allowable leave. Employees may, but are not required to, use DCFMLA leave before other leave. Violations are subject to penalties of $1,000 each.
Recently passed legislation in New Jersey prohibits employers from terminating or refusing to reinstate employees for taking time off (as instructed by a medical professional) due to COVID-19. Another new law expands the definition of “serious health condition” in the state’s temporary disability insurance (TDI) and family leave insurance (FLI) programs to allow benefits when a person is diagnosed with or suspected of exposure to a communicable disease, or to take care of a family member similarly affected.
The legislation also expands New Jersey’s earned sick leave law to permit the use of earned sick time for isolation or quarantine recommended or ordered by a provider or public health official as a result of suspected exposure to a communicable disease, or to care for a family member under similar isolation or quarantine.
An additional law enacted on April 14, 2020, expands the state’s Family Leave Act to allow employees to take up to 12 weeks of unpaid time off to care for a family member as a result of an epidemic of a communicable disease, or efforts to prevent spread of a communicable disease. The job-protected leave also applies to employees requiring leave to provide care or treatment for their child if the child's school or place of care is closed in response to a public health emergency.
The state’s Department of Labor and Workforce Development has developed printable guides outlining COVID-19– related benefits for New Jersey employees. These guides explain the applicability of benefits like earned sick leave, unemployment insurance, temporary disability and family leave insurance, and workers’ compensation in various COVID-19-related situations.
New York state enacted a new law providing leave for employees subject to a quarantine or isolation order due to COVID-19, effective March 18, 2020. Whether and how much employee compensation is required during the leave depends on the size and net income of the employer, as follows:
$1 million or less, and up to 10 employees: Unpaid leave through the end of the quarantine or isolation. (Employees are eligible for paid family leave and disability benefits.)
More than $1 million, and up to 10 employees: Leave through the end of the quarantine or isolation, at least five days of which must be paid. (After five days, employees are eligible for paid family leave and disability benefits.)
Between 11 and 99 employees: Leave through the end of the quarantine or isolation, five days of which must be paid. (After five days, employees are eligible for paid family leave and disability benefits.)
100 or more employees: 14 days of paid sick leave during quarantine or isolation.
Public employers: 14 days of paid sick leave during quarantine or isolation.
The law also allows paid family leave for employees to care for children under a quarantine or isolation order. Employees eligible for federal COVID-19-related leave may take state leave only to the extent that it exceeds the federal leave. Exceptions to the leave requirement apply for asymptomatic or undiagnosed employees who can work virtually, and for employees who traveled to affected regions (including states on New York’s travel advisory) for non-work purposes. For further information, see the state’s FAQs, or contact the New York Department of Labor.
Philadelphia—Under emergency regulations, employees covered by the city’s sick leave law may use that leave for specified COVID-19-related reasons. Click here for more information.
The Rhode Island Division of Labor and Training is waiving certain eligibility requirements for individuals filing COVID19-related claims under the state’s temporary disability insurance and temporary caregiver insurance programs. The Division has developed a fact sheet with further information.
This Compliance Bulletin is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.