We've Got You Covered! Leave and COVID-19 Absence Management

With a nationwide pandemic causing unprecedented impact on businesses, HR worries and concerns are mounting. Take a deep breath. Optis’ LeaveXpert gives you a reliable and trusted leave and absence management platform that is continually updated to stay current with regulatory changes that impact your business. You have enough to worry about right now, let us take care of leave and absence management for you.

On March 18^th, in response to the coronavirus pandemic, President Trump signed an Emergency FMLA Leave and Paid Sick Leave program to help provide guidance for employers and employees. This guidance can be overwhelming for HR professionals to process and synthesize among the many other new responsibilities they are fielding at this time. We have updated Optis’ LeaveXpert to include two new leave types to track time-away related to these benefits.

Below you will find high-level summaries of the new leave requirements as well as some key jurisdictional regulatory changes. As always, please be sure to work with your legal counsel regarding the new regulations and how they impact your organization.

If you would like more information on how LeaveXpert can help you increase productivity by managing absence effectively, please email us at Solutions@optis.com

FMLA AND SICK LEAVE REGULATORY UPDATES

Emergency FMLA Expansion

Paid Sick Leave
LeaveXpert: OTHER Case Type
Effective Date: 4/2/2020

For employers with less than 500 employees, employees who have worked at least 30 days are covered. Employees are allowed up to 12 weeks of leave. The leave is paid after a 10-day waiting period at the rate of two-thirds an employee’s regular rate of pay (up to $200 per day/$10,000 total per employee cap). Employers can require employees, or employees can choose, to use other forms of paid leave during the 10-day waiting period. The new “public emergency” form of FMLA may be used when an employee is unable to work due to the need to care for a child under the age of 18 due to school or childcare closure because of a public health emergency related to the coronavirus.

There are no employee documentation requirements for taking the new form of FMLA leave.
The Emergency FMLA provides job protection for employee.

Employers with fewer than 25 total employees do not have to provide job protection if they can show:

The employee’s position no longer exists due to “economic conditions or other changes in operating conditions of the employer that affect employment and are caused by the public health emergency during the employee’s period of leave” and
The employer made a reasonable effort to restore the employee to a position of equivalent. The employer must also continue to make reasonable efforts to contact the employee if an equivalent position become available during a one-year period.

The new Emergency FMLA expansion must be used before December 31, 2020.

The Act also allows employers to take payroll tax credits for wages paid under the Emergency Family and Medical leave expansion provisions of the Act. For this purpose, the amount of wages considered for each employee is capped at $200 per day/$10,000 per employee.

Emergency Paid Sick Leave

Paid Sick Leave
LeaveXpert: FML Case Type
Effective Date: 4/2/2020

All public and private employees regardless of service hours (i.e. no hours requirement) now qualify for up to 80 hours of paid leave for full-time employees or up to the average number of hours worked over a two-week period for part-time employees.

Employers who already provide the amount of paid leave described, and who allow it to be used for one of the permitted leave reasons, are not required to provide additional leave under this act.
Employers are not permitted to require employees to use other forms of leave before using this new 80 hours of paid leave.
Employees may choose to use this new form of paid leave before using any other form of paid leave when they need to be off work for one of the permitted leave reasons.
Employers will be reimbursed for this paid leave via Tax Credits.

Employees may use the Emergency Paid Sick Leave if they are unable to work or telework for one of the following leave reasons:

(a) “self-quarantining due to having symptoms and seeking a medical diagnosis”

(b) being told to self-quarantine by a federal, state, or local order or a health care professional related to COVID-19

(d) school or paid childcare provider closings due to COVID-19 precautions or

(e) “experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”

Employees must return to work for their next schedule work shift after the need for paid sick leave as provide ends.

When the leave reason is A or B, this new paid sick leave benefit shall be paid out at each employee’s full regular rate of pay (or the applicable minimum wage rate for the employee if this is higher than their regular rate) above the cap benefit is $511 per day/$5,110 total per employee or at two-thirds this rate;
When the leave reason is for c. – e. above the cap benefit is $200 per day/$2,000 per employee.

The new Emergency FMLA expansion must be used before December 31, 2020 and does not have to be paid out upon termination if not used. Employers must post the notice provision in visible place on their premises by March 25, 2020. The Secretary of Labor has 15 days from the President’s signing of the Act into law to issue accompanying regulations.

The Act provides employer tax credits to cover wages paid to employees while they are away from work covered under the Act's new paid sick leave requirements. Each sick leave credit will equal each employee’s wages, subject to certain limits. The credits are as follows:

$511 per day while the employee is receiving paid sick leave to care for themselves, limited to a total of 10 days per employee through December 31, 2020
$200 per day if the sick leave is to care for a family member or child whose school or paid childcare provider is closed.The family leave credit for each employee is limited to $2,000 through December 31, 2020.

The credits will be taken against the employer’s payroll tax and are refundable to the extent they exceed the payroll tax. Employers will not receive the credit if they are also receiving a credit for paid family and medical leave under Internal Revenue Code section 45S.

JURISDICTIONAL REGULATORY UPDATES

City of San Francisco, CA

Paid Sick Days Update
No LeaveXpert Impact
Effective Date: Immediately

New guidance was issued for San Francisco’s Paid Sick Leave Ordinance allowing covered employees to use accrued sick leave for COVID-19 related situations. It provides the following:

(1) Employee takes time off work because public health officials or healthcare providers require or recommend an employee isolate or quarantine to prevent the spread of disease

(2) Employee takes time off work because the employee falls within the definition of a “vulnerable population” under the San Francisco Department of Public Health’s (DPH)

(3) Employee takes time off work because the employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation

(4) Employee takes time off work because the employee needs to provide care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine or

(5) Employee takes time off work because the employee needs to provide care for a family member whose school, child care provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.

During this period, employers may not require a doctor’s note or other documentation for the use of any paid sick leave taken pursuant to the Paid Sick Leave Ordinance.

New York

Paid Sick Leave
No LeaveXpert Impact
Effective Date: 3/18/2020

New Paid Sick Leave relating to COVID-19 quarantine or isolation orders which are mandatory or precautionary and issued by the State of New York, the Department of Health, a Local Board of Health, or any governmental entity duly authorized to issue such an order. The new law went into effect immediately and provides paid leave based on the employer size:

Employers with >11 employees and a net income less than $1 million will provide job protection for the duration of the quarantine/isolation order and provide their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine/isolation, including wage replacement for their salaries up to $150,000 “along with any other benefit as provided by any other provision of law”
Employers with 11-99 employees and employers with >11 employees with a net income greater than $1 million will provide at least five days of paid sick leave, job protection for the duration of the quarantine/isolation order, and provide their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine/isolation (after the 5 days of paid leave), including wage replacement for their salaries up to $150,000
Employers with 100 or more employees will provide at least 14 days of paid sick leave and guarantee job protection for the duration of the quarantine/isolation order for the period of quarantine/isolation.

** The law also contains an “override” clause that provides that if the federal government provides benefits to cover COVID-19 related situations, these shall override the benefits provided in this law (check with your legal counsel on how to handle with the new federal law’s provision of up to 80 hours of paid leave for “quarantine or isolation” orders).

Colorado

Paid Sick Leave
No LeaveXpert Impact
Effective Date: 3/11/2020

Colorado Department of Labor issued “an emergency HELP (Health Emergency Leave with Pay) Rule” to “ensure workers in food handling, hospitality, child care, health care, and education can get paid sick leave to miss work if they exhibit flu-like symptoms and have to miss work awaiting testing results for COVID-19.” The regulation provides up to 4 days of paid leave for employees in the following industries:

Leisure and hospitality
Food services
Child care
Education and related food service or work at schools
Home health if people are working with elderly, disabled, sick or high-risk people
Nursing homes and community living facilities who have flu-like symptoms for COVID-19 testing

Employees who already may take paid leave for this purpose through their employers are not eligible for additional leave under this new law. Currently, these Rules will only remain in effect through April 10. “They may be extended if the State of Emergency declared by the Governor continues.

Washington

Paid Sick Leave Update
No LeaveXpert Impact
Effective Date: Immediately

Washington has amended its Paid Family and Medical Leave with several updates that go into effect immediately. The update includes:

addition of son-in-law and daughter-in-law as qualifying family members employees
provides a definition for “casual labor.”
defines "Paid Time Off."
defines “supplemental benefits”.

See the regulation updates for the definition details.