States and Cities Update COVID-19 Paid-Sick-Leave Laws

After the federal Families First Coronavirus Response Act (FFCRA) expired along with its mandate for employers to provide paid sick leave, state and local lawmakers stepped in to fill the gap. Their efforts have created a hodgepodge of temporary mandates requiring employers to pay workers who are sick, need to isolate or quarantine, or are seeking COVID-19 testing or vaccination. This article is the second in a series that explores employers' state paid-sick-leave obligations during the pandemic and beyond.

As the coronavirus pandemic persists, employers should look for updates to COVID-19-related paid-sick-leave mandates at the state and local level.

These laws may have different employer requirements or reasons for which leave can be taken, which makes compliance a challenge for businesses with workers in multiple locations. Some jurisdictions have added emergency protections for sick or quarantined workers, while others have issued guidelines on how existing paid-leave rules apply to the coronavirus and COVID-19.

Katharine Weber, an attorney with Jackson Lewis in Cincinnati, thinks more states and localities will extend paid-sick-leave laws, particularly since the most recent federal economic relief package—the American Rescue Plan Act—did not mandate continued COVID-19-related paid leave.

The act only extended the FFCRA tax credits to employers that voluntarily offer such leave. Many state and local mandates, however, were expanded and extended after the FFCRA's paid-leave mandates expired on Dec. 31, 2020.

"COVID-19 has imprinted itself on the way we think about the need for employers to provide time off from work when an employee is ill or needs to take time off to care for a family member who is ill," Weber noted.

Below are examples of states and cities that have enacted laws to fill in the gaps of the federal legislation. Employers with workers in these states and cities should be aware, too, of how the COVID-19 laws interact with existing paid-leave laws.

Following New York's State and Local Laws

New York enacted a law in March 2020 providing paid leave and job protections to eligible workers who must quarantine due to the coronavirus. The legislation provides variable benefits based on the employer's net annual income and number of employees.

Employers should note that New York also mandates paid sick leave that is not specific to COVID-19 and provides eligible employees with paid-family-leave benefits. Monitor for local leave laws as well, which may have different requirements than state law and cover additional COVID-19-related leave.

"Particularly vexing is the varying eligibility, accrual and use requirements imposed by the state's laws and local ordinances, such as those in New York City and Westchester County," noted Christina Janice, an attorney with Barnes & Thornburg in Chicago.

Additionally, all employees in the Empire State must receive paid leave for up to four hours per COVID-19 vaccine injection. So employees may be entitled to up to eight hours of paid time off if they received a two-injection vaccination, and employers cannot require workers to use other available paid time off.

Pennsylvania Localities Have Their Own Rules

Employers in Pennsylvania may be covered by local laws even if there's not a statewide paid-sick-leave mandate. Philadelphia and Pittsburgh have local paid-sick-leave ordinances, but the state of Pennsylvania does not.

In addition to ordinary paid sick leave, Philadelphia initially provided COVID-19-specific leave through Dec. 31, 2020, for employees who work for large organizations that were not covered by FFCRA. Effective March 29, however, the city expanded coverage to require employers with 50 or more employees to provide up to 80 hours of paid sick leave to eligible employees who need to take leave for specific COVID-19-related reasons. The new law will remain in place for the duration of the pandemic.

Eligible Pittsburgh-based employees may take up to 80 hours of paid time off for certain COVID-19-related reasons. Additionally, Pittsburgh's permanent Paid Sick Days Act provides workers with up to 40 hours of paid sick leave for various circumstances that could arise in the context of the COVID-19 pandemic, including individual illness, the need to care for an ill family member and workplace closures due to a public health emergency.

So in certain circumstances, Pittsburgh's laws may require employers to provide up to three weeks of paid sick leave for COVID-19-related reasons under the separate schemes established by each ordinance, noted J.T. Holt, an attorney with Reed Smith in Pittsburgh.

New Jersey Builds on Existing Laws

In some jurisdictions, COVID-19-related laws provide for a temporary expansion of existing paid-sick-leave laws to ensure coverage for qualifying COVID-19-related reasons, Holt said. 

In New Jersey, employers generally must provide workers with up to 40 hours of paid sick leave a year. The New Jersey Department of Labor & Workforce Development clarified that such accruals can be used for COVID-19 testing, illness, quarantine and vaccination.

Additionally, employees can't be fired for taking time off to test, quarantine or isolate, so long as they have a medical note recommending that they take time off because they may have an infectious disease and could infect others at the worksite. New Jersey workers also may be eligible for the state's temporary disability and family leave insurance programs.

California Has Multiple Supplemental Laws

California employees are likely covered by a statewide supplemental COVID-19 paid-sick-leave law that was recently expanded and extended through Sept. 30, and they also may be covered by local emergency ordinances.

A number of COVID-19 laws provide leave only if an employee is unable to "work or telework." So employers should ensure that employees who request COVID-19 paid leave are unable to telework before approving the requested leave, recommended Kayla Cox, an attorney with Littler in Sacramento, Calif. 

Employers in all locations should continue to monitor for COVID-19-specific mandates and extensions. Federal, state and local governments and public health authorities continue to update their COVID-19-related recommendations and mandates as the coronavirus crisis continues. So even employers that reviewed their policies earlier in the pandemic should consider reviewing them again, Holt said.

'Other Laws May Apply'

Employers should determine whether and to what extent illness, diagnosis, self-quarantine and ongoing public health orders make workers eligible for benefits under state paid-sick-leave and paid-family-leave laws, Janice said.

"Don't forget that other laws may still apply," noted Stephanie Rawitt, an attorney with Clark Hill in Philadelphia. Even if paid leave is exhausted or unavailable, COVID-19-related requests should be evaluated under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) and equivalent state laws that may provide unpaid leave.

Rawitt said "flu-like" symptoms may not be considered a serious health condition, but lung issues might qualify, particularly for COVID-19 long haulers with severe symptoms that last for months.  

"For any leave request, employers need to do an evaluation to ensure every possibility is being considered," she said.

Employers may also need to review their own policies, she added. "Some employers are still erring on the side of caution and giving employees more paid leave through temporary COVID-19 policies than they normally would. The key is to be consistent."

[There have already been more than 25 state labor law changes in 2021. View them here and learn about printed and electronic labor law poster services.]