Sharing our Best Practices for Leave Management During COVID-19
While there is much uncertainty concerning COVID-19, it's clear that the leave law landscape is changing faster than ever before, with new federal, state and local leave policies being proposed and taking effect every few days. The earliest legislation included the federal Families First Coronavirus Response Act, which included support for Emergency Paid Sick Leave (EPSL) and Expanded Family and Medical Leave (EFML), along with expansions of the Oregon Family Leave Act and New York Paid Family Leave. There are now another dozen or so states and municipalities looking to pass their own legislation. It's more important than ever to be aware of all of the policies that are available to your employees, and have systems in place to manage leaves of absence efficiently and compliantly.
As the leading developer of cloud-based leave management software, and the only one that tracks all 500 federal, state and local leave rules, we have created this resource to share some of our best practices and to keep you up to date on key pieces of COVID-19 related legislation.
Before we dive into the specific laws that have been passed, we want to highlight some of the important factors that we see affecting leave case managers during this crisis:
- There are much higher volumes of employees taking medical leaves and caring for sick family members as well as taking quarantine leaves, leading to manual leave processes being unsustainable.
- Employers are struggling to provide quarantine leave for employees who don't qualify for the Family and Medical Leave Act (FMLA).
- Many HR/Benefits teams have witnessed layoffs themselves, leaving them with more work and fewer resources.
- A huge number of leave administrators had to begin working remotely which is incredibly difficult without a cloud-based leave software.
- Leave laws are constantly being updated and new leave laws are being added, so for those who are managing leave manually, staying up-to-date is more critical than ever.
For everyone who is feeling these pains, we encourage you to have a look at our Presagia Leave solution. Presagia Leave is cloud-based, covers the FMLA, ADA and 450+ state leave laws, reminds you what your next steps in a leave case are based on legal guidelines, fills in your leave letters for you, and much more. We continuously update the leave rules and have already made many updates to address COVID-19 legislation.
Now, onto the leave policies... To help you gain an understanding of recent changes, the following are the leave policies you should be paying attention to!
Please note that while Presagia manages the leave component of these policies, it is expected that a client's payroll system will manage the payroll calculations.
General Pandemic Leave Policy
This leave policy is not a law, but one that we feel should be mentioned. As the pandemic hit, most employers didn't have a formal pandemic leave policy in place and there was little to no legislation to address leave for reasons like quarantine when employees or their family member aren't yet sick, but cannot be at work. However, many employers want to be able to both provide and track leave for reasons like quarantine.
In response, Presagia's Compliance Team added a discretionary General Emergency Pandemic Leave policy in our system as a best practice for our clients who wish to allocate an employee’s time away from work due to the current pandemic. It's optional for our clients to use and is particularly useful when there isn’t any coverage available under federal, state, local or company leave policies. This policy can be applied instead and our clients can then track time and report on the impact the pandemic has had on their business.
If you haven't considered a leave policy like this for your business, you may want to speak with your legal counsel to discuss your options.
Families First Coronavirus Response Act (FFCRA)
The FFCRA was introduced in response to COVID-19 and consists of two components. The first component, the Emergency Family and Medical Leave Act, is an extension of the FMLA which provides 12 weeks of job-protected, partially-paid leave to eligible employees. The other component, known as the Emergency Paid Sick Leave Act, provides eligible employees with two weeks of paid sick leave.
Emergency Expanded Family and Medical Leave Act
Private-sector employers with fewer than 500 employees and all public-sector employers are obligated to provide up to 12 weeks of job-protected, partially paid FMLA leave to employees who have been employed for at least 30 calendar days (either full-time or part-time) when the reason for leave is “a qualifying need related to a public health emergency.” In this instance, a “qualifying need” is for employees who are incapable of working from home or teleworking because of one of these reasons:
- The employee needs to care for a child when the child’s school is closed (due to a public health emergency).
- The employee needs to care for a child because the child’s care provider isn’t available (due to a public health emergency).
Employees are first provided with 10 unpaid days of leave but have the option of using paid leave that has been accrued (vacation, personal, or sick leave) during this time. After the first segment of unpaid FMLA leave, the remaining FMLA leave must be paid at a rate of two-thirds of the employee’s regular rate (limited to no more than $200/day and a total of $10,000).
Emergency Paid Sick Leave Act
This Act covers the following employers:
- Employers who are in the private sector with less than 500 employees.
- Public agencies (federal/state governments, political subdivisions and schools).
- Any other organization that isn’t a private entity (i.e. public transportation systems).
- Anyone who is acting indirectly or directly in the interests of the employer.
All employees are eligible, regardless of how long they’ve worked for the employer, provided that their employer meets one of the above eligibility requirements.
Employers are required to provide two weeks of paid sick leave to employees (who are unable to work from home or telework) for the following reasons:
- Quarantine/self-isolation in compliance with an order from the federal, state, or local government, related to COVID-19.
- Quarantine/self-isolation as advised by a health care provider due to COVID-19.
- Employee is seeking a medical diagnosis because they are experiencing COVID-19 symptoms.
- Employee is caring for an individual (such as a family member) who has been required or advised to self-isolate because they have been diagnosed with or have symptoms related to COVID-19.
- Employee is caring for a child whose school/place of care has been closed, or child care is unavailable because of COVID-19.
- Employee is experiencing conditions as specified by the Secretary of Health and Human Services.
Under the Act, certain health care providers and emergency responders are excluded from the definition of “employee,” allowing employers to deny these workers sick leave.
The new act provides anti-retaliation protections for employees who take this leave or issue a complaint under it. As with other similar laws, this act provides penalties for failure to pay wages.
The amount of paid leave depends on whether the employee is full-time or part-time.
Full-time employees are entitled to 80 hours at their regular rate of pay. If the employee is caring for a family member (reasons 4-6, mentioned above), they are paid two-thirds of their regular rate.
Part-time employees are entitled to the average number of hours the employee works over a two week period.
Paid leave is limited to $511 per day (no more than $5,110 in total) for leave taken for the first 3 reasons (employee is taking sick leave for themselves) and $200 per day ($2000 in total) for reasons 4-6 (employee is taking sick leave to care for others).
State-Specific Leave Policies
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California has released a Frequently Asked Questions document stating that under the California Family Rights Act (CFRA), COVID-19 is now considered a serious health condition if it leads to pneumonia, results in inpatient care or the individual requires treatment or supervision by a healthcare provider.
Employees are eligible for this leave if their employer employs at least 50 employees (within 75 miles of their workplace), have worked there for at least one year and have worked a minimum of 1,250 hours in the year before they can take time off.
Eligible employees may take up to 12 weeks of job-protected leave for the following reasons:
- For their own serious health condition.
- To care for a spouse, parent or dependent child with a serious health condition.
Furthermore, the document clarified that employees may use their California Paid Sick Leave for a leave that’s covered under the California Labor Code section 230.8, in response to COVID-19.
The Colorado Department of Labor and Employment (CDLE) published emergency rules requiring employers to provide paid sick leave to employees who are experiencing flu-like or other respiratory illness symptoms and are either waiting for test results for COVID-19 or are under instruction from a healthcare provider to quarantine or isolate due to risk of having COVID-19 (even if they aren’t being tested).
This leave went into effect on March 11, 2020 and will be in effect for the duration of the state of emergency as declared by the Governor, for up to a maximum of 120 days. Amendments have been made since April 27th to expand the coverage.
Eligible employees are those who meet the criteria stated above and work in the following industries, regardless of pay rate or method:
- Leisure and hospitality
- Food services
- Child care
- Education (and related services including cafeterias and transportation)
- Home health care (working with elderly, disabled, ill, or otherwise high-risk individuals)
- Operating a nursing home or a community living facility
- Food and beverage manufacturing
- Retail establishments
- Real estate sales and leasing
- Offices and office work
- Elective health services
- Various listed personal care services (beauty, spa and others)
Eligible employees were originally entitled to up to four days of paid sick leave, however this has been amended to two weeks (up to 80 hours). It’s important to note that this paid sick leave is not in addition to any sick leave an employer already provides.
If an employee tests positive for COVID-19 and has to be quarantined or self-isolated as per direction of a healthcare provider or an authorized government official, they will be entitled to paid sick leave, however, this doesn’t cover wage replacement for resulting lost work time and wages.
Eligible employees are entitled to pay for up to two weeks (up to 80 hours) at ⅔ the employee’s pay.
Note that this leave is job protected, but ends if an employee receives a negative COVID-19 test result. At this point, the employee must return to work as required.
D.C. has amended the D.C. Family and Medical Leave Act (DCFMLA) by enacting the COVID-19 Response Emergency Amendment Act of 2020, which came into effect March 17, 2020 and will stay in effect for a period of 90 days. The Act adds a new section to the DCFMLA for leave in the event of a declaration of emergency and is for employees who are unable to work as a result of this emergency.
This leave applies to any employer regardless of the number of persons in the District they employ, and is only to be taken by the employee requesting the leave during the period of the emergency. The 1-year employment and 1,000 hour work requirements will not be required for an employee ordered or recommended to quarantine or isolate by the Department of Health, any other District or federal agency, or a medical professional.
Eligible employees are entitled to 16 weeks of leave every 24 months.
Earned Sick and Safe Leave
New Jersey has expanded their Earned Sick and Safe Leave Law in response to COVID-19. The amendments allow covered employees to use their earned leave for the following reasons:
- A state of emergency declared by the governor that has led to the closure of their workplace or their child’s school or place of care.
- When the employee’s presence in the community or that of a family member in need of their care would jeopardize the health of others, as declared by a state of emergency by the governor, or the issuance of a healthcare provider, the commissioner of health or other public health authority.
- The employee is in isolation or quarantine, or is caring for a family member who is in quarantine, as a result of suspected exposure to a contagious disease during a state of emergency by the governor, or the order, direction or recommendation of a healthcare provider, the commissioner of health, or other public health authority.
The amendments clarify that employees who quarantine, whether they have COVID-19 or not, are entitled to Earned Sick and Safe Leave.
Eligible employees may accrue up to 40 hours or five days of paid sick leave.
Family Leave Act
New Jersey has made amendments to the New Jersey Family Leave Act (NJFLA) in response to the COVID-19 pandemic. The amendments were enacted on March 19, 2020 with an additional amendment made on April 14, 2020. The amendments expand the definition of a serious health condition under the NJFLA, which now includes the following:
- An illness caused by an epidemic of a communicable disease.
- A known or suspected exposure to a communicable disease.
- Efforts to prevent spread of a communicable disease, requiring in-home treatment or care of a family member of the employee.
The reasons for leave have also been expanded to include situations where the employee has to care for:
- A family member whose presence may jeopardize the health of others in the community as per the issuance of a healthcare provider, commissioner or other public authority.
- A family member who must be isolated or quarantined because of a suspected exposure to the communicable disease, upon the recommendation, direction or order of the healthcare provider or authority.
- Their child, due to closure of their school or place of care issued by a public health official.
Eligible employees include those who have been employed for 12 months or more and have worked 1,000 or more base hours during the last year. Employees who meet these requirements are entitled to up to 12 weeks of job protected unpaid family leave in a 24-month period.
Temporary Disability Benefits Law
New Jersey has also amended the New Jersey Temporary Disability Benefits Law to ease family burdens on employees during the COVID-19 pandemic. This was enacted on March 19, 2020 with additional amendments since April 14, 2020. These expanded the definition of a serious health condition (per those in the above mentioned New Jersey Family Leave Act) and eliminated the seven-day waiting period.
Eligible employees include those who are employed by a covered employer or who have been unemployed for less than two weeks. They must also have at least 20 base weeks or earned no less than 1,000 times the minimum wage, within the 52 calendar weeks before the week their period of disability begins.
Eligible employees are entitled to up to 26 weeks of leave every 52 weeks.
New York Paid Family Leave
New York expanded the New York Paid Family Leave in response to COVID-19. This policy applies to employers with four or more employees. Eligible employees are allowed to take this leave for the following reasons:
- To care for a family member who has contracted COVID-19.
- For a minor child who is under mandatory quarantine (issued by the State of New York, the Department of Health, local board of health, or any government entity).
- If they are under a mandatory quarantine/isolation (not available if the employee is able to work remotely) issued by the State of New York, the Department of Health, local board of health, or any government entity.
New York Sick Leave
New York also added the New York Sick Leave (for public and private employers), which provides up to 14 days of paid leave. Under this policy, entitlement to the paid portion is dependent on employer size and/or revenue:
- Employers with less than 10 employees and with a net income of less than or equal to $1 million are not required to provide paid sick leave.
- Employers with 1-10 employees who have a net income of over $1 million must provide their employees with at least five paid sick days.
- Employers with 11-99 employees must also provide their employees with five paid sick days.
- Employers with 100 or more employees must provide at least 14 paid sick days.
- Public employers of any size must provide at least 14 paid sick days.
Eligible employees are allowed to take this leave for themselves or because they need to care for a minor dependent child who is under a mandatory quarantine/isolation due to COVID-19.
Presagia Leave tracks the time for both the paid and unpaid leave portions of this leave policy.
Oregon has temporarily expanded (until September 13, 2020) the qualifying conditions for the Oregon Family Leave Act in response to COVID-19. This policy applies to employers with 25 or more employees and now includes public health emergency as a qualifying leave reason. Eligible employees may take this leave for a child whose school has closed due to a public emergency by a public health official (whether or not the child is sick).
Presagia Leave will guide leave case managers through collecting supporting documents, automatically calculate eligibility and entitlement, and enable tracking and reporting on the employee’s leave for all of the leaves mentioned above.
Puerto Rico has extended their Minimum Salary, Vacation and Sick Leave Act to cover employees who have exhausted other paid leave, in response to COVID-19. This leave has been in effect since April 9, 2020 and provides employees with up to five days of paid leave.
This leave applies to private sector employees, excluding employees classified as executives, administrators and professionals.
During a state of emergency declared by the Secretary of the Department of Health or the Governor of Puerto Rico, employees who are sick or suspected of being sick due to the pandemic are covered by this leave, after they use any accrued sick leave.
City-Specific Leave Policies
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The City of Los Angeles passed the Supplemental Paid Sick Leave (SPSL) ordinance on March 27, 2020 in response to COVID-19. On April 7, 2020, this ordinance was replaced and superseded by the Mayor’s Public Order, which went into effect on April 10, 2020. The Public Order will remain in effect until two calendar weeks after the COVID-19 local emergency period ends.
Covered employers are those with either:
- 500 or more employees within the City of Los Angeles.
- 2,000 or more employees within the United States.
The following types of employers are exempted from coverage under the Public Order:
- Emergency and health service providers.
- Global parcel delivery service providers.
- Those who provide paid leave or paid time off that equals or is greater than 160 hours of paid leave per year.
- Businesses that relocated to or opened in the city between September 4, 2019 and March 4, 2020.
- Government agencies.
- Any business or organization that was not operating or was closed for a period of 14 days or more because of the city’s emergency order related to the COVID-19 pandemic or provided their employees with at least 14 days of leave.
The order also provides guidelines for if and when a collective bargaining agreement may supersede the requirements outlined by the order.
Covered employees are those who perform any work for a covered, non-exempt employer within the geographic boundaries of Los Angeles. The employee must have been employed with the same employer from February 3, 2020 through March 4, 2020.
Eligible employees are entitled to up to 80 hours of paid sick leave. The total amount of pay is capped at $511 per day and no more than $5,110 in total. Eligible employees who work at least 40 hours per week or are classified as full-time will receive 80 hours of paid sick leave. Eligible employees who work fewer than 40 hours per week and are not classified as full-time will receive no greater than the average of their two-week pay from February 3, 2020 to March 4, 2020.
The following reasons qualify an employee for Supplemental Paid Sick Leave:
- Employee must self-isolate or quarantine, as issued by a public health official or health provider, to prevent the spread of COVID-19.
- Employee is taking time off because they are at least 65 years of age or are at-risk because of a health condition.
- Employee needs to care for a family member (not necessarily sick) but because they were recommended to self-isolate or quarantine as recommended by a public health official or healthcare provider.
- Employee needs to care for a family member because their school, senior care provider or childcare provider is unavailable/closed.
An employer may not require a doctor’s note or other documentation for the use of SPSL.
The City of Pittsburgh has enacted the Paid Sick Days Act (PSDA), which took effect March 15, 2020.
Covered employers, which includes those with 15 or more employees, must provide employees up to 40 hours per year of paid sick leave. This is accrued at a rate of one hour of leave for every 35 hours worked. Employees who work in Pittsburgh but live outside the city are also covered, and their regular travel time to the city counts towards hours worked.
Employers with less than 15 employees must also provide paid sick leave at the same accrual rate, up to 24 hours per year.
This is a “maximum bank cap” leave, meaning that once an employee uses leave hours, accrual will begin again.
Under this ordinance, employers can request supporting documentation from employees to support their absence if leave is taken for three or more consecutive days. Employers may not count sick time taken under this ordinance as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action, unless the employee does not follow the applicable notification and documentation procedures.
San Francisco enacted the Public Health Emergency Leave Ordinance (PHELO) on April 17, 2020 in response to COVID-19.
The ordinance covers employers with 500 or more employees to address the gap in emergency paid leave coverage created by the FFCRA. This ordinance applies to employees who work full-time or part-time within the City.
Employees are eligible for leave if they meet the criteria for one of the following reasons:
- The employee is subject to an individual or general self-isolation or quarantine order related to COVID-19 by a federal, state or local level government.
- The employee is advised to self-isolate or quarantine by a healthcare provider.
- The employee is seeking a medical diagnosis because they are experiencing symptoms associated with COVID-19.
- The employee is taking care of a family member in self-isolation or quarantine.
- The employee is taking care of a family member due to their place of care being closed because of the public health emergency related to COVID-19.
- The employee is “vulnerable” as defined by the ordinance.
Eligible full-time employees are entitled to 80 hours of emergency leave, and part-time employees are entitled to the average hours they were scheduled over a two week period “over the previous six months ending on February 25, 2020.”
Eligible employees include those who work for essential businesses in San José within the city’s geographical boundaries. This includes businesses with less than 50 or more than 500 employees. This ordinance is meant to fill gaps in the federal FFCRA.
Eligible employees are entitled to 80 hours of leave if they are full-time. If they are not considered full-time, they are entitled to their average hours worked in a two week period. According to a Frequently Asked Questions document released by the City, part time employees’ average hours should be calculated using their hours worked per week between October 8, 2019 and April 7, 2020.
Employees may take this leave for the following reasons:
- The employee must self-isolate or quarantine based on federal, state or local orders.
- The employee must self-isolate or quarantine as advised by a healthcare provider.
- The employee is experiencing symptoms associated with COVID-19.
- The employee is caring for a minor child or adult whose school or place of care is closed due to COVID-19.
The rate of pay depends on the reason for leave. Employees who are using sick time for themselves will be paid their regular rate of pay, up to $511/day and not exceeding $5,110 in total. Employees who use sick time to care for another person will be paid ⅔ their regular rate of pay, up to $200/day and not more than $2,000 in total.
Upcoming COVID-19 Leave Policies
New leave legislation continues to be proposed in response to COVID-19. We are monitoring the leave law landscape for future additions to this resource.
Interested in learning how cloud-based leave management software can help you manage the volume, complexity, and compliance issues associated with leave management during this critical time?
Schedule your free demo of Presagia Leave today!
Don't have time to implement full leave management software, but need help understanding the laws and legally required notices?
While Presagia Leave is our full leave management system offering, we know that not everyone has the time or budget to implement it. If you still need help understanding the intricacies of federal, state and local leave laws, Presagia's Leave Genius is for you!
Leave Genius is a powerful web app that leverages Presagia's Absence Compliance Engine to help you navigate federal, state and local leaves.
Here's how this easy to use leave law tool works:
- Simply enter some information about your employee's request for leave, like their work location, the reason for leave and hours worked.
- Leave Genius then:
- Automatically calculates the employee's eligibility for all of the federal, state and local leave policies applicable.
- Presents you with all of the applicable laws.
- Shows you how each law's eligibility and entitlement is calculated.
- Provides you with all of the legally required notices in editable PDF format, and even pre-fills important information for you.
- Packages up a summary of each leave law and how to manage it, which you can even download.
- A record of every request is also saved in Leave Genius should you ever need to refer back to it in the future.
Our Industry Blog
If you want to keep receiving the latest news about leave laws from Presagia, we keep our blog up-to-date with all things leave and accommodation management, including COVID-19 updates, FMLA, ADA, state leaves and more. Subscribe for instant updates and check out our posts about COVID-19 below:
- What Employers Need To Know About The COVID-19 Leave Legislation
- How To Manage Leave During COVID-19 | Part 1
- How To Manage Leave During COVID-19 | Part 2
Interactive Leave Map
To help give you an understanding of all of the leave policies that could apply to your employees in addition to those enacted in response to COVID-19, we have created an interactive leave map showcasing all the laws across the country. Click on any state to access a comprehensive list of its types of leave legislation. The map is regularly updated to reflect the laws in your state.
Presagia is closely monitoring the legal and business landscape to ensure the highest state of readiness to respond to any legislation changes enacted or other proposals now and on the horizon.