The COVID-19 pandemic has brought seismic changes to nearly every facet of our lives. The same has been true for federal and local employment laws. Although the law typically evolves and changes at a near glacial pace, the COVID-19 pandemic has produced new sick leave laws in a matter of weeks that would have before taken nearly a generation to draft and enact.
A. Families First Coronavirus Response Act
The Families First Coronavirus Response Act (“FFCRA”) is federal legislation that went into effect on April 1, 2020. The FFCRA provides both paid sick leave and paid family leave, the latter of which may extend for up to twelve weeks.
Under the paid sick leave portion of the FFCRA, an employee who is unable to work (i) because of quarantine due to a federal, state, or local government order, (ii) on the advice of a health care provider, or (iii) because the employee is experiencing COVID-19 symptoms and seeking medical diagnosis may receive up to two weeks (or eighty hours) of paid sick leave. Such leave is paid at the employee’s regular rate of pay up to a maximum of $511 per day (or an aggregate amount of no more than $5,110 over a two-week period.) The leave is not available to employees who are unable to work only due to a shelter-in-place order. Employees may also be eligible for up to two weeks of paid leave if they are caring for a family member that is subject to quarantine, but in such case the employee’s sick pay is capped at two-thirds of the employee’s regular rate of pay up to $200 per day (or an aggregate amount of no more than $2,000 over a two-week period).
Under the paid family leave portion of FFCRA, an employee who is unable to work due to a child’s daycare or school closing because of the COVID-19 pandemic may receive up to twelve weeks of paid sick leave. Such leave is paid at two-thirds of the employee’s regular rate of pay up to $200 per day(or an aggregate amount of no more than $12,000 over a twelve-week period).
The United States Secretary of Labor has issued temporary regulations concerning the FFCRA (Paid Leave Under the Families First Coronavirus Response Act, 85 Fed. Reg. 19,326 (Apr. 6, 2020), https://www.govinfo.gov/content/pkg/FR-2020-04-06/pdf/2020-07237.pdf),but an exhaustive discussion is beyond the scope of this article. However,highlights for employers to be aware of include the following:
- The law exempts several types of employers, including employers with over 500 employees and certain health care providers. The law also provides potential exemptions for small employers with fewer than fifty employees if they can demonstrate either (i) providing paid leave would cause business expenses to exceed revenues, (ii) the absence of the particular employee requesting leave would “entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities,” or (iii) granting the request for leave would leave the business without a sufficient labor force “to operate at a minimal capacity.”
- In order to be eligible for twelve weeks of paid family leave, the employee must have been employed for at least thirty days before the leave is requested. Any employee can request paid sick leave or up to two weeks of paid family leave.
- The FFCRA – like the Family Medical Leave Act – contains anti-retaliation provisions to prevent employers from retaliating against employees who request leave under the new law.
- Covered employers must post a notice of the FFCRA’s provisions in a conspicuous location on their premises.
- Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA.
B. Expanded San Francisco Paid Sick Leave
San Francisco already mandates companies employing workers within the city provide a certain minimum amount of paid sick leave, the accrual of which is capped at up to seventy-two hours for larger employers. However,in March Mayor London Breed announced that the city would enact expanded paid sick leave provisions in response to the COVID-19 pandemic. Under these expanded provisions, the city has made a pool of $10 million available to employers to reimburse them for providing expanded sick leave benefits to employees. Under this program, the city will reimburse $15.59 per hour for up to forty hours of additional sick leave, or up to $623 per employee. Businesses are required to pay any difference in wages if the employee’s rate of pay is greater than $15.59 per hour. Employees must also exhaust any previously accrued paid sick leave before an employer can seek reimbursement for the provision of additional paid sick leave. These reimbursement amounts are available to employers with less than 500 employees.
Additionally, on April 17, 2020, Mayor London Breed signed into law an emergency ordinance requiring companies with 500 or more employees to provide an additional two weeks of paid sick leave to employees due to circumstances created by the COVID-19 pandemic, the San Francisco Public Health Emergency Leave Ordinance. The qualifying reasons for use track nearly identically the reasons for use of paid sick leave and paid family leave under the FFCRA, and the emergency ordinance is clearly meant to cover large employers who were exempted under the FFCRA. As of April 16th, the emergency ordinance is currently awaiting Mayor Breed’s approval. If approved, it will go into effect immediately and continue for the sooner of sixty-one days or whenever the declared public health emergency nds.
We here at Scherer Smith & Kenny LLP remain available to address any uestions you may have related to these or other employment- or business-related issues. For additional information, please contact Denis Kenny at dsk@sfcounsel.com, Ryan Stahl at rws@sfcounsel.com, or John Lough, Jr., at jbl@sfcounsel.com
– Written by Ryan Stahl