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 Act and Emergency Family and Medical Leave Expansion Act, 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 which employers and employees are 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 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.
Action Steps
Employers should monitor the websites of their state departments of labor for new laws, rules and guidance about COVID-19-related employee leave.
Highlights
States are increasingly enacting laws and issuing new rules and guidance on employee leave taken as a result of COVID-19.
State actions on employee leave come in addition to the paid employee leave provisions of the Families First Coronavirus Act passed by Congress.
Key features of new laws and regulations include the length of leave, compensation for leave, and eligibility requirements for leave.
Recommendations
Employers should stay alert to the following actions on the state level:
- New employee leave laws and regulations
- Changes to existing laws and rules on employee leave
- Guidance on the application of existing rules and laws to COVID-19 circumstances
California
As of March 29, 2021, California employers with more than 25 employees must provide up to 80 new hours of supplemental paid sick leave for specific COVID-19-related reasons. The leave requirement is retroactive to Jan. 1, 2021, meaning that employees are entitled, upon request, to be paid for qualifying leave they took between that date and March 28, 2021. The new leave mandate expires Sept. 31, 2021.
The law was passed following the expiration of state and federal COVID-19 leave mandates in December 2020. The California Department of Industrial Relations (DIR) has published FAQs and a mandatory workplace notice on the new law. Recordkeeping provisions apply.
To qualify for leave under the California 2021 COVID-19 supplemental paid sick leave law, an employee must be unable to work or telework due to:
- Quarantine, isolation, or a healthcare provider’s advice to quarantine due to COVID-19, or symptoms of COVID- 19 while seeking a diagnosis;
- Caring for a family member who is subject to a COVID-19 quarantine or isolation period or has been advised by a healthcare provider to quarantine due to COVID-19, or caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises; or
- A vaccine appointment or vaccine-related symptoms.
Employers may receive credit against the new leave requirement if they provided supplemental COVID-19 leave between Jan. 1, 2021, and March 28, 2021, or provide such leave going forward, as long as the alternative leave meets the requirements for leave under the new law. For instance, the credited leave may not consist of any other vacation, paid leave or paid time off that is not specific to COVID-19.
In addition, employers may count leave provided under a local ordinance toward the leave required by the state supplemental paid leave law. Furthermore, employers may require employees to exhaust their COVID-19 supplemental paid sick leave before receiving exclusion pay under the Cal-OSHA COVID-19 emergency temporary standards or the Cal-OSHA Aerosol Transmissible Diseases standard (explained below). Employers who did not compensate qualifying leave at the rate required by the new law may make retroactive payments to employees so the leave will be credited against their new obligation. If an employee requests such a payment, it must be provided by the next payday.
Full-time employees are entitled to 80 hours of supplemental paid sick leave, and part-time employees are entitled to leave equal to two weeks of working hours. Special rules apply for part-time employees with variable schedules and to firefighters.
Guidance from the DIR about another COVID-19-related leave requirement states that employers who require COVID-19 testing or vaccination must pay for the time those procedures take because that time constitutes “hours worked.” In this situation, employers may not require workers to use paid leave.
On Nov. 30, 2020, California adopted emergency temporary Cal/OSHA standards on COVID-19 infection prevention that apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. Among other things, the new standards require employers to exclude employees from the workplace for specified periods if they test positive for or have been exposed to COVID-19, or if they are under an isolation order from a health official.
If an employee is accordingly excluded from work and is otherwise “able and available to work,” the employer is required to continue to maintain the employee’s “earnings, seniority, and all other employee rights and benefits,” including the employee’s right to their former job status, as if the employee had not been removed from their job. Employers may use employer-provided employee sick leave benefits for this purpose and consider benefit payments from public sources in determining how to maintain earnings, rights, and benefits, where permitted by law and when not covered by workers’ compensation.
FAQs issued by the DIR state that employees unable to work because of COVID-19 symptoms are not eligible for exclusion pay and benefits. These employees, however, may be eligible for workers’ compensation or state disability insurance benefits. The FAQs also state that employees would typically receive pay for a quarantine period of up to 14 days. If an employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness. The employee, however, may be eligible for temporary disability or other benefits.
The exclusion pay requirement does not apply when the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission. It also does not apply where the employer demonstrates that the COVID-19 exposure is not work-related.
Employers are required to provide notice of the employee rights described above to employees who have been excluded from the workplace under the new standard, at the time of exclusion.
The California Department of Industrial Relations has created employer resources about the standard.
Local Laws
The following entries describe select California local leave laws enacted in response to the COVID-19 emergency. Additional localities not listed here (such as San Mateo County, Sonoma County, and Santa Rosa) have passed similar measures. Employers should familiarize themselves with the leave laws that apply in their county, city or town.
- Long Beach—Effective May 19, 2020, a Long Beach ordinance imposes a paid sick leave requirement on employers that have 500 or more employees nationally, and that are not required to provide FFCRA emergency paid sick leave. Under the ordinance, full-time employees are entitled to 80 hours of paid leave, and part-time employees are eligible for paid leave in an amount equal to their average number of work hours over a two-week period, for specified COVID-19-related reasons. As with the FFCRA, different rates of compensation apply, depending on the reason for leave. The ordinance also contains pay caps and employee and employer exceptions, such as for health care workers and emergency responder employees (as defined in the ordinance).
Under the terms of the ordinance, every 90 days, the city manager reports on whether the ordinance is still necessary.
- Los Angeles—Mayor Eric Garcetti issued a public order, effective April 10, 2020, and continuing through two weeks after the end of the COVID-19 local emergency, requiring up to 80 hours of supplemental paid sick leave for certain workers for specified COVID-19-related reasons. The order applies to private employers with 500 or more employees within the city of Los Angeles, or 2,000 or more employees within the United States. The order includes employer and employee exemptions, and pay caps apply. The city has issued rules to implement the order.
On February 10, 2021, the mayor updated the order to cover workers not previously eligible. Supplemental paid sick leave now applies to workers have worked at least 60 days at large businesses and nonprofits with more than 500 employees in the city or more than 2,000 employees nationwide. The previous order had limited leave to workers employed by these organizations from February 3 through March 4, 2020.
- Unincorporated Los Angeles County—On Jan. 26, 2021, the county amended and extended an urgency ordinance providing employees up to 80 hours of supplemental paid sick leave for specific COVID-19-related reasons. The new amended ordinance is retroactive to January 1, 2021, and took effect immediately. It remains in effect until two calendar weeks after the expiration of the COVID-19 local emergency (the original ordinance expired Dec. 31, 2020). The amendments expand supplemental paid sick leave to cover employees at all nongovernmental businesses in the unincorporated areas of the county (the original applied only to employers with 500 or more employees nationally). Part-time employees receive paid sick leave equal to their average two weeks’ pay. Pay is capped at $511 per day and $5,110 total.
Employers may exclude emergency responders or health care providers, as defined in the ordinance, from the leave.
Leave otherwise due to an employee under the amended ordinance is reduced by any supplemental paid sick leave the employee received under the original ordinance or the FFCRA. Employees who have exhausted their leave benefits under either measure are not eligible for any additional supplemental paid sick leave under the amended ordinance.
- Oakland—Under an emergency ordinance passed Jan. 19, 2021, the Oakland City Council amended and extended its original emergency paid sick leave ordinance, which was passed May 12, 2020, and expired Dec. 31, 2020. The new ordinance is retroactive to Dec. 31, 2020, and requires all employers within the city to provide their workers with emergency paid sick leave for specified COVID-19-related reasons, which include being at least 65 years old or at other risk of serious illness from COVID-19 exposure. The law took effect immediately upon passage. Full-time workers receive 80 hours of leave, while part-time workers are entitled to an amount of leave equal to their average work hours over a 14-day period.
Employers may take a credit toward the leave required in the ordinance for any emergency paid sick leave they provided an employee under the FFCRA or the state supplemental leave requirement (both expired).
Pay caps and exemptions, including for small employers (fewer than 50 employees) and health care worker and emergency responder employees, apply.
The city issued FAQs on the expired ordinance and is expected to issue new FAQs on the extension and amendment.
- Sacramento—Under a city ordinance extended through March 31, 2021, employers must provide employees up to 80 hours of supplemental paid sick leave for specified COVID-19-related purposes. The ordinance applies only to employers that have 500 or more employees nationally and are exempt from FFCRA paid sick leave requirements. Exceptions apply for employees who are emergency responders or health care providers, and employers can use certain employee leave provided for COVID-19 purposes as a credit toward the leave required under the ordinance. As with FFCRA paid sick leave, compensation varies according to the reason for the leave, and daily and aggregate pay caps apply.
- San Francisco—Effective April 17, 2020, the San Francisco Public Health Emergency Leave Ordinance requires employers with 500 or more employees worldwide to provide their San Francisco employees with up to 80 hours of emergency paid sick leave for certain coronavirus-related purposes. Click here for FAQs from the city on the law. In February 2021, the ordinance was amended to exclude nonprofit organizations that do not engage in health care operations and whose annual revenue is mostly program service revenue that is unrelated business taxable income. The amendments also struck a provision allowing leave to be taken without regard to employees’ work schedules. The ordinance has been extended through April 20, 2021.
The city of San Francisco also passed the Workers and Families First Program, providing $10 million to businesses with employees in San Francisco to provide five days of sick leave beyond employers’ existing policies. The additional sick leave is available only to employees who have exhausted their currently available sick leave, have exhausted or are not eligible for federal or state supplemental sick leave, and whose employer agrees to extend sick leave beyond current benefits. The city has released an employer guide on the program.
In addition, the city has published guidance on the use of San Francisco Paid Sick Leave for coronavirus-related reasons.
- San Jose—On Jan. 5, 2021, following the Dec. 31, 2020, expiration of its original supplemental paid sick leave ordinance, San Jose passed a new ordinance that continues, from Jan. 1, 2021, through June 30, 2021, the paid sick leave benefits that had been provided under the city’s ordinance and the FFCRA’s Emergency Paid Sick Leave Act, and adds a private right of action to enforce the benefits.
Colorado
Effective Jan. 1, 2021, Colorado employers must provide workers with up to 80 hours of paid public health emergency leave (PHEL) under the state’s Healthy Families and Workplaces Act. The requirement was clarified in guidance and temporary emergency rules issued by the state’s Department of Labor and Employment (DLE) on Dec. 23, 2020.
The PHEL requirement mandates that, on the date a public health emergency is declared, employers provide full-time employees with enough supplemental paid leave to ensure they have a total of 80 hours of paid leave to use for specified purposes related to the emergency. Part-time employees are entitled to a lesser amount of the supplemental paid leave, and all employees may use the leave for four weeks following the end of the public health emergency. According to the DLE guidance, the PHEL requirement was triggered by Colorado executive orders declaring and extending a COVID-19 public health emergency.
Employees’ unused general paid sick leave (accrued under a different portion of the Healthy Families and Workplaces Act) may be counted toward the PHEL requirement. Employers with fewer than 16 employees must provide 80 hours of PHEL, despite not being required to provide general paid sick leave under the Healthy Families and Workplaces Act until 2022.
Previously, from July 14, 2020, through Dec. 31, 2020, the Healthy Families and Workplaces Act expanded paid sick leave under the federal Families First Coronavirus Response Act (FFCRA) to cover Colorado employers and employees exempt from the federal law. This law had replaced the Colorado Health Emergency Leave with Pay (“HELP”) rules that had mandated paid sick leave for certain workers affected by COVID-19.
Nevada
The Nevada Labor Commissioner’s Office has issued guidance on employees’ use of leave for COVID-19 purposes under the state’s new paid leave law. According to the guidance, employees may elect to use available paid leave or other applicable leave while out on a mandatory government quarantine, but employers may not require that employees use the leave for this purpose.