Sick leave

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Earlier this month, the US Department of Labor (DOL) promulgated regulations to implement the recently enacted Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA), both of which are part of the broader Families First Coronavirus Response Act (FFCRA). The regulations address several key issues that were unclear in the original statutory language. Still, as explained below, several critical questions surrounding the EPSLA and EFMLEA remain unanswered.

Employer Coverage Issues under the FFCRA

Subject to certain eligibility requirements, the plain language of the FFCRA requires employers to furnish EPSLA and EFMLEA leave to their workers if the business has fewer than 500 employees in the United States. The regulations make clear, however, that the determination of whether an employer falls under this threshold must be made on a rolling basis at the time a particular employee requests leave (rather than, for instance, as of the FFCRA’s April 1 effective date).

This approach will require employers to take a “snapshot” of employee headcount at different intervals to assess the paid-time-off and leave entitlements of particular employees. And the regulations in fact even recognize that the approach may result in employees of the same entity having different paid-time-off and leave rights depending on when the employee requests leave. For example, a company with 499 or fewer employees in April may need to grant leave to employees, but if its payroll is over 500 in May, it can deny a request for FFCRA leave at that time.

The regulations also clarify that, for purposes of determining employee headcount under the FFCRA, employers must include all full-time and part-time employees, employees on leave, and day laborers supplied by a temporary agency. If the company is a “joint” or “integrated” employer under previous DOL standards, the employees of all entities must be counted together. The regulations also clarify that independent contractors do not count towards the 500-employee threshold (although it remains to be seen how this concept applies to workers who are excluded from the FFCRA calculation but are misclassified as independent contractors). See 28 C.F.R. § 826.40. The DOL further clarifies that employees who have been temporarily laid off or furloughed, and not subsequently reemployed, do not count toward the 500-employee threshold for determining employer eligibility under the FFCRA. See 29 C.F.R. § 826.40(a)(1)(iii).Continue Reading DOL issues new guidance on Families First Coronavirus Response Act (FFCRA)

On April 16, 2020, California Governor Gavin Newsom signed an executive order requiring employers to provide up to 80 hours of COVID-19 Supplemental Paid Sick Leave for food sector workers.  The executive order is effective immediately and extends paid sick leave requirements to cover not only employees, but also independent contractors working in the food sector.

Covered employers

The executive order applies to “hiring entities,” defined as private companies that have 500 or more employees in the United States.  It specifically includes any “Delivery Network Company” (a business entity that maintains an internet website or mobile application used to facilitate delivery services for the sale of local products) and “Transportation Network Company” (an organization operating in California that provides prearranged transportation services for compensation using an online-enabled application or platform to connect passengers with drivers using a personal vehicle).
Continue Reading California requires expanded COVID-19 paid sick leave for food sector workers

On April 7, 2020, the San Francisco Board of Supervisors passed the Public Health Emergency Leave Ordinance (PHELO) to expand paid sick leave and emergency family medical leave benefits in response to the COVID-19 pandemic.  That ordinance was not signed and enacted by Mayor Breed, and the Board of Supervisors has now passed an amended version of the ordinance (Amended PHELO), on April 14, 2020, which is awaiting the mayor’s signature.  Although the Amended PHELO is substantially similar to the previous version, it includes three key changes in that it (1) expands the definition of covered employees; (2) clarifies the calculation and availability of leave; and (3) modifies leave guaranteed to health care providers and emergency responders.
Continue Reading San Francisco Board of Supervisors approves amended paid sick leave ordinance in response to COVID-19 pandemic

On April 7, 2020, San Francisco, California and San Jose, California passed emergency ordinances to expand paid sick leave and emergency family medical leave benefits.  The ordinances cover gaps under federal law by expanding leave benefits under the federal Families First Coronavirus Response Act (the Act), which is limited to employers with fewer than 500 employees, to employers with more than 500 employees.  Under the ordinances, employers must provide to each employee paid sick time to the extent that the employee is unable to work or telework because:

  1. The employee is subject to quarantine or isolation by federal, state, or local order due to COVID-19, or is caring for someone who is quarantined or isolated due to COVID-19.
  2. The employee is advised by a health care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health care provider.
  3. The employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis.
  4. The employee is caring for a minor child because a school or daycare is closed due to COVID-19.

Continue Reading San Francisco and San Jose expand paid sick leave in response to COVID-19 outbreak

On April 7, 2020, Los Angeles Mayor Eric Garcetti suspended a paid sick leave ordinance by the Los Angeles City Council and signed an emergency order providing for mandatory paid sick leave for many large employers with essential employees working in the City of Los Angeles (L.A. Supplemental PSL), effective immediately.

Existing Los Angeles City paid sick leave laws already surpassed California state law mandates by providing twice the minimum allotment under state law. Under the existing Los Angeles City paid sick leave ordinance, employers were already required to provide employees with at least 48 hours (six days) of paid sick leave or one hour for every 30 hours worked.

The recent enactment of the federal paid sick leave provision of the Families First Coronavirus Response Act (FFCRA) applies only to companies with fewer than 500 employees. The L.A. Supplemental PSL now seeks to “bridge the gap” by creating mandatory paid sick leave for the Los Angeles employees of many larger employers who are not bound by the FFCRA.
Continue Reading Los Angeles emergency order mandates supplemental paid sick leave for large employers

Updated April 4, 2020

Effective April 1, the Families First Coronavirus Response Act (FFCRA or Act) requires certain private sector employers with fewer than 500 employees and governmental employers of all sizes to provide their employees with emergency paid sick leave and emergency paid medical leave. More information about the FFCRA is available here.

Given the current unknowns, many employers are evaluating the financial implications of the Act’s expansive mandatory paid leave and making difficult decisions, including reducing head count.

To incentivize employers (in particular, those deemed essential under various shelter orders) to retain their employees and bear the costs of emergency paid leave, the FFCRA offers covered employers a refundable payroll tax credit. This tax credit offsets the cost of the paid leaves required under the Act, and could make all the difference for certain businesses concerned that the cost of these paid leaves will run them out of business. Here’s how it works.Continue Reading FFCRA payroll tax credits: Here’s how it works

The Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), both enacted last week, provide significant new federal benefits to small businesses and their employees. Critically, both statutes target smaller employers. To that end, they each contain provisions that are only applicable to employers with fewer than 500 employees. However, each statute counts employees differently. This distinction in counting methods between the statutes presents a dangerous compliance trap for the unwary.
Continue Reading Counting employees under FFCRA and the CARES Act is not necessarily as easy as 1-2-3

On March 27, 2020, the Los Angeles City Council approved a new paid sick leave ordinance (L.A. Ordinance), to remain in effect until December 31, 2020, which supplements federal bill H.R. 6201, known as the Family First Coronavirus Response Act (FFCRA). The FFCRA provides for paid sick leave and paid family leave entitlements to companies with fewer than 500 employees.

Existing Los Angeles City paid sick leave laws already surpassed California state law mandates by providing twice the minimum allotment under state law. Under the existing Los Angeles City paid sick leave ordinance, employers were already required to provide employees with at least 48 hours (six days) of paid sick leave or one hour for every 30 hours worked.

The L.A. Ordinance now seeks to “bridge the gap” in the FFCRA, requiring employers in Los Angeles with 500 or more employees nationally to provide two weeks of additional paid sick leave to their employees who perform any work within the geographic boundaries of the city of Los Angeles. Employees who have been employed with the same employer from February 3, 2020, through March 4, 2020, are entitled to supplemental paid sick leave as follows.
Continue Reading Los Angeles implements additional paid sick leave for employers with 500 or more employees nationwide

As of March 28, 2020, there are over 103,000 reported cases of COVID-19 in the United States. In Dallas County, there are 439 confirmed cases—an increase of 72 cases from the prior day—and the number of cases is expected to rise. Given the current environment, employers should be cognizant of Dallas’ Earned Paid Sick Time Ordinance (the “Ordinance”), which takes effect on April 1, 2020. While there has been significant question as whether the Ordinance violates the Texas Constitution, the City of Dallas recently has suggested it intends to enforce the statute after the effective date of April 1, 2020.

The Ordinance originally took effect on August 1, 2019 (for employers with 6 or more employees) and mirrors the paid sick leave ordinances passed by Austin on February 15, 2018 and San Antonio on October 3, 2019. The Austin ordinance is currently enjoined and is before the Texas Supreme Court. See City of Austin, Texas, et al. v. Tex. Ass’n of Bus., et al., No. 19-0025 (Tex. filed Jan. 10, 2019). The San Antonio ordinance is also enjoined, and the Dallas ordinance, while not enjoined, is the subject of a lawsuit pending in the Eastern District of Texas. See ESI/Emp. Sols., LP, et al. v. City of Dallas, No. 4:19-CV-00570-ALM (E.D. Tex. filed July 30, 2019).
Continue Reading Employers should be ready to comply with Dallas’ paid sick leave ordinance during the COVID-19 pandemic

Today the Department of Labor (DOL) updated the required poster that employers subject to the Families First Coronavirus Response Act (those with fewer than 500 employees) must place on their premises to satisfy their employees of the rights requirement under the Act. The update corrects the 10 weeks of paid sick leave under the Family and Medical Leave Act expansion cap amount to $10,000.

Since a vast majority of employees are now working remotely, the DOL has advised that employers may satisfy the standard notice requirement of hanging the poster in a conspicuous place on the employer’s premises (i.e., a kitchen, breakroom or other accessible area) by emailing, or directly mailing, the notice to employees, or by posting the notice on the employer’s internal or external website. Employers that are not fully remote must also post the notice. Similarly, employers who are currently all remote must remember to post the notice once in-office operations resume. 
Continue Reading DOL issues updated FFCRA notice poster