Paid-Leave Requirements for COVID-19 Are Dwindling

[Editor's note: This article has been edited with corrections. Arizona and New Jersey do not have paid leave specifically for COVID-19 but instead paid sick leave that may be used for COVID-19. New York should have been included in the list of states that still have paid leave for COVID-19. The COVID-19 leave in Washington, D.C., was unpaid.]

States and localities are backing off their requirements that employers give paid leave to workers with COVID-19 after death and hospitalization rates have fallen dramatically since the height of the pandemic.

Some states—such as Colorado and New York—and some cities still require paid leave for COVID-19 specifically or for a public health emergency, according to a recent report from Mercer. In Colorado, employers are required to provide one hour of paid leave per 30 hours worked, up to 48 hours per year. This requirement took effect Jan. 1, 2021, and is permanently in effect, not just during the COVID-19 emergency. Accrued leave is usable in Colorado for a wide range of health and safety needs, not just COVID-19-related.

Washington, D.C., previously had a COVID-19 leave requirement—though unpaid—but, the report stated, it expired. That leave could have been used contemporaneously with paid leave.

"We're just seeing some scaling back of these [requirements] overall," said Stephanie Mills-Gallan, an attorney with Littler in Milwaukee. "We do have a scattering of localities where there are paid-COVID-leave laws in effect. … We didn't have a ton to begin with, and they're slowly getting picked off. At this point, it's pretty few and far between."

In California, the mandate to provide paid COVID-19 sick leave ended on Dec. 31. Gov. Gavin Newsom said California's COVID-19 state of emergency will end on Feb. 28.  Los Angeles, Philadelphia and San Francisco are among the cities that still have local laws requiring paid leave for COVID-19 or a public health emergency. Los Angeles' COVID-19 Supplemental Paid Sick Leave ordinance will end on Feb. 15, two weeks after the expiration of the city's public health emergency.

Although COVID-19-specific mandates are decreasing, Rich Glass, a principal in Mercer's law and policy group in Dallas, expects to see more states and cities adopt new laws requiring paid or unpaid leave during any public health emergency. Monkeypox and air pollution from wildfires are recent examples that sparked a declaration of a nationwide public health emergency.

The federal government renewed its declaration of a public health emergency due to the COVID-19 pandemic on Jan. 11. Mills-Gallan said the federal government is likely to let that status expire in April, and many state and local governments are likely to follow that lead.

There's no national mandate for paid or unpaid leave for COVID-19, but the federal Family and Medical Leave Act (FMLA) could apply to an employee who is seriously ill with COVID-19, depending on the severity of their symptoms and treatment. The FMLA requires unpaid leave for serious health conditions. Some states and localities require paid sick leave.

Sometimes this paid sick leave must be available for quarantining after exposure to COVID-19. For example, in Arizona, earned paid sick time must be available if an employee or a family member is quarantined after exposure to COVID-19.  New Jersey employers of all sizes must provide employees with up to 40 hours of paid sick leave per year so they can care for themselves or a loved one, including for COVID-19 testing, illness, quarantine or vaccination.

Changing Circumstances

When states and localities first put paid-COVID-19-leave requirements into place, they aimed to help workers who were dealing with long quarantines and sudden closures at their children's schools and day care facilities. Those quarantines and closures are much rarer now that the third year of the pandemic is almost completed.

Providing paid COVID-19 leave also is a way to encourage workers to stay home, rather than coming into work when they aren't feeling well and possibly spreading the virus.

"While the requirement to provide supplemental COVID leave is expiring, we expect that with the 'tripledemic' of the flu, COVID and RSV, employers will be exploring how to balance the need for staffing with policies that allow employees an appropriate amount of time off to handle these matters," said Nisha Verma, an attorney with Dorsey & Whitney in Costa Mesa, Calif.

Employers can always offer more time off than what state or local laws require. About 25 percent of private employers created or modified their paid-sick-leave or time-off plans because of the COVID-19 pandemic, according to the U.S. Bureau of Labor Statistics. Among those that made changes, 34 percent added one to five paid-leave days, 20 percent added six to 10 days, and 37 percent added more than 10 days.

"Unfortunately, low-income workers who continue to have the most exposure to COVID-19 and most need the financial protections of paid sick leave are also least likely to have paid sick leave," said Julia Raifman, assistant professor of health law, policy and management at Boston University's School of Public Health. "We see that paid-sick-leave policies are associated with increased vaccination rates."

"Balancing the requirements of the law and the needs of the employees is no easy task," Glass said. "You want to be fair, consistent and comply with the various laws and regulations and ordinances that apply to that situation."

Tips for Employers

Glass recommended keeping accurate records on where employees are and designating at least one person to track local and state requirements for COVID-19-specific leave. "Find a sheriff, and have that sheriff get some deputies," he said.

Multistate employers shouldn't adopt a blanket, companywide policy for COVID-19 leave because state and local laws have varied requirements, Mills-Gallan noted.

Employers in a jurisdiction that requires paid COVID-19 leave should understand how that interacts with FMLA leave; state and local paid-sick-leave laws; and employers' other time-off benefits, such as sick days, vacation days and short-term disability.

Don't assume that other paid-leave programs will satisfy laws mandating COVID-19-specific leave. "This is in addition to any other paid-time-off benefits that the employer provides," Mills-Gallan said.