Tag Archive for: sick leave

Colorado employers, brace for 2023 state legislative developments

The Colorado state legislature enacted a crop of new laws affecting employers in 2023, including the following:

  • The POWR Act (Protecting Opportunities and Workers’ Rights Act)
  • Revisions to existing job/promotional opportunity posting and disclosure requirements
  • Expansion of reasons for taking HFWA/paid sick leave
  • Age-related questions in job applications
  • Penalties related to wrongful refusals to allow use of service animals by disabled individuals
  • State actions to recover reimbursement of overdue wage payments
  • Expansion of military leave.

The remainder of this blog post summarizes some of the features of these new developments.

  • POWR Act (Protecting Opportunities and Workers’ Rights Act) will take effect August 7, 2023: The Colorado legislature summarized this wide-ranging law, as follows:
  • Directs the Colorado civil rights division (division) to include “harassment” as a basis or description of discrimination on any charge form or charge intake mechanism;
  • Adds a new definition of “harass” or “harassment” and repeals the current definition of “harass” that requires creation of a hostile work environment;
  • Adds protections from discriminatory or unfair employment practices for individuals based on their “marital status”;
  • Specifies that in harassment claims, the alleged conduct need not be severe or pervasive to constitute a discriminatory or unfair employment practice;
  • For purposes of the exception to otherwise discriminatory practices for an employer that is unable to accommodate an individual with a disability who is otherwise qualified for the job, eliminates the ability for the employer to assert that the individual’s disability has a significant impact on the job as a rationale for the employment practice;
  • Specifies the requirements for an employer to assert an affirmative defense to an employee’s proven claim of unlawful harassment by a supervisor; and
  • Specifies the requirements that must be satisfied for a nondisclosure provision in an agreement between an employer and an employee or a prospective employee to be enforceable; and
  • Requires an employer to maintain personnel and employment records for at least 5 years and, with regard to complaints of discriminatory or unfair employment practices, to maintain those records in a designated repository.

When reviewing the legislature’s summary of its new POWR Act, Colorado employers may wish to note the following fleshouts on some of those points:

  • In revising the definition of prohibited “harassment,” the legislature has deleted the longstanding threshold requirement that harassment be “severe or pervasive.” In doing so the legislature noted that some threshold still needed to be met, in that “petty slights, minor annoyances, and lack of good manners” will generally not suffice. Future litigation will need to analyze how this new standard requiring more than “petty slights, minor annoyance, and lack of good manners” is different than the longstanding “severe or pervasive” standard. Further complicating future litigation will be the legislature’s observation in the POWR Act that this new standard will, like the prior standard, require an analysis of “the totality of the circumstances.”
  • Additionally, in revising the definition of “harassment,” the legislature has revised the longstanding Ellerth-Faragher defense, in cases of prohibited harassment by supervisors, for employers who train against and take prompt and effective remedial steps to eliminate prohibited harassment. Now, Colorado law will require an employer, when sued for sexual harassment by a supervisor, in order to qualify for this affirmative defense, to prove that they had a “program” in place that is “reasonably designed” to “prevent” unlawful harassment and to “deter” unlawful harassment and to protect” employees from unlawful harassment, additionally, that they actually do take “prompt, reasonable action to investigate or address” complaints and incidents, and further that they actually do take “prompt, reasonable remedial actions, when warranted,” and also that they have “communicated the existence and details of the program.”
  • Marital status itself will be a protected class.
    • The POWR Act does not define whether “marital status” means the status of being married, or whether it would include the status of being not married, being in a partnership relationship, being in a dating relationship, etc.
  • The changes that apply to a “nondisclosure provision” are multi-faceted and warrant immediate review of any agreement that includes confidentiality language, whether an employment agreement, an NDA (non-disclosure agreement), a non-compete or non-solicit, etc., if “entered into or renewed on or after” August 7, 2023.
    • While employers will still be able to require confidentiality language that protects trade secrets, any “nondisclosure provision” will be void if it goes farther than that and “limits the ability of the employee or prospective employee to disclose, either orally or in writing, any alleged discriminatory or unfair employment practice.”
    • The legislature provided one exception for “nondisclosure provisions” that:
      • Applies “equally to all parties to the agreement,” apparently in other words, meaning confidentiality may be required if there is mutuality as to “all parties to the agreement,”
      • Expressly states
        • that it does not restrain the employee or prospective employee from disclosing
          • the underlying facts of any alleged discriminatory or unfair employment practice,” apparently, to anyone,
          • “the existence and terms of a settlement agreement” to
            • “the employee’s or prospective employee’s immediate family members, religious advisor, medical or mental health provider, mental or behavioral health therapeutic support group, legal counsel, financial advisor, or tax preparer,”
            • “any local, state, or federal government agency for any reason, including disclosing the existence and terms of a settlement agreement, without first notifying the employer,”
            • anyone “in response to legal process, such as a subpoena to testify at a deposition or in a court, including disclosing the existence and terms of a settlement agreement, without first notifying the employer,” or
            • anyone “for all other purposes as required by law,”
        • that, as for agreements that also contain a nondisparagement provision,
          • “disclosure of the underlying facts of any alleged discriminator or unfair employment practice within the parameters specified (above) does not constitute disparagement,”
          • if “the employer disparages the employee or prospective employee to a third party, the employer may not seek to enforce the nondisparagement or nondisclosure provisions of the agreement or seek damages against the employee or any other party to the agreement for violating those provisions, but all other remaining terms of the agreement remain enforceable,”
      • As for agreements that also contain a liquidated damages provision, the liquidated damages provision’s amount must be
        • “reasonable and proportionate in light of the anticipated actual economic loss that a breach of the agreement would cause,”
        • “varied based on the nature or severity of the breach,” and
        • not “punitive,”
      • Additionally, an “addendum” to the agreement must
        • be signed by all parties to the agreement
        • wherein each party must “attest to compliance with” new Colorado Revised Statute section 24-34-407(1)(a) (summarized above).
    • Not only does the failure to comply with this new law invalidate the non-disclosure (and non-disparagement) language (and related language like any related liquidated damages clause), but merely providing it to an employee or prospective employee also subjects an employer to claims by the employee, prospective employee, as well as the CDLE for damages, costs, attorney fees, penalties including a $5,000 penalty, which penalty may be reduced including to $0.00 if the employer proves “good faith.”
  • The “repository” of complaints that will now be required to be maintained for at least 5 years must contain all written and oral complaints, the identity of each complainant (if known, in other words, if not anonymous), the identity of the alleged wrongdoer, and the substance of the complaint.
    • This repository must be kept separate from personnel records.
    • This repository is not open to public inspection.
    • However, employers should anticipate that all federal, state and local EEO agencies will demand to see it (as will litigants through discovery), though it is not clear if it must be made available to any agency other than the CDLE.

 

  • Job/Promotional Posting Requirements: The Colorado legislature also amended its relatively recent job opening and promotional opportunity posting requirements, including, effective January 1, 2024:
    • As for “job opportunity” postings, employers have been required to post pay ranges, including benefits, now they will be required to post, in addition, the anticipated window when applications  will close.
      • A “job opportunity” is defined to be “a current or anticipated vacancy for which the employer is considering a candidate or candidates or interviewing a candidate or candidates or that the employer externally posts.”
      • A “vacancy” is defined to be “an open position, whether as a result of a newly created position or a vacated position.”
      • After filling a job opportunity, employers must disclose the following,
        • The name of the individual selected,
        • Their new job title,
          • And, if they were an internal hire, their former job title,
        • Information on how to apply for similar positions in the future.
        • Such notice must be given at least to the employees with whom that individual will work regularly
        • Such notice is not required if it would violate the selected individual’s privacy rights, health or safety.
    • No notice will be required for “career progressions,” which phrase is defined as
      • “a regular or automatic movement from one position to another,”
      • which is “based on time in a specific role or other objective metrics,”
      • so long as the employer has already disclosed to “all eligible employees the requirements for career progression, in addition to each position’s terms or compensation, benefits, full-time or part-time status, duties, and access to further advancement.”
    • Out-of-state employers will be partially and temporarily exempted from job posting requirements until July 1, 2029, so long as the company
      • has no physical location in Colorado,
      • has fewer than 15 workers in Colorado,
        • “all of whom work only remotely,”
      • and posts any “remote job opportunities.”

 

  • HFWA/paid sick leave: In addition to existing HFWA paid sick leave requirements, Colorado workers will, effective August 7, 2023, be able to take HFWA paid sick leave for the following additional reasons:
    • grieving, funerals and memorials, financial and legal matters after the death of a family member,
    • caring for a family member whose school or place of care has been closed due to inclement weather, loss of power, heat, water, or other unexpected events,
    • evacuations of the worker’s residence due to inclement weather, loss of power, heat, etc.

 

  • Job applications: Effective July 1, 2024, job applications in Colorado may not include questions related to age, date of birth, dates of attendance at education programs or graduation from them, unless required by federal, state or local law. (For readers who may have seen discussion of this new law, SB 23-058, in other resources, it has been colloquially referred to as the “Don’t Ask Applicants’ Age” law).

 

  • Penalties related to service animals: HB 23-1032 revised the remedies for refusing to allow use of a service animal by disabled individuals to now include actual damages or a fine of $3,500 per violation.

 

  • State actions to recover reimbursement of overdue wage payments: SB 23-231 allows the CDLE, through a t0-be-established wage theft enforcement fund, to pay employees overdue wages, if overdue by at least six months, then recover reimbursement from employers.

 

  • Military leave: HB 23-1045 allows Colorado workers in the Colorado National Guard or U.S. reserves to take up to three workweeks (instead of Colorado law’s prior 15 days) of military leave for military training and, at their discretion, to take, as they do, available paid leave.

Maryland joins ranks of states mandating some form of paid sick leave

Law 360 ran a recent article noting that Maryland has joined the ranks of at least 10 states (California, Colorado, Connecticut, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington, Washington, D.C.) that have already mandated some form of paid sick leave. Employers are reminded to check each jurisdiction’s laws as they vary widely, some mandate that employers provide paid sick leave, some call for the creation of state-administered and/or privately insured paid leave programs, and even within those broad categories the amount of what kinds of paid leave required vary widely including for employees of varying seniority. Additionally numerous cities and local governments have implemented their own array of programs.

Also warranting specific and frequent reviews of potentially applicable paid sick leave mandates, these laws are not infrequently the subject of litigation as they roll out. For example, Colorado employers may wish to follow a recent Colorado Supreme Court case, no. 22SC78 (formerly Colorado Court of Appeals case no. 22CA91), titled Chronos Builders, LLC v. Colorado Department of Labor and Employment, Division of Family and Medical Leave Insurance, in which the Supreme Court accepted certiorari, agreeing to hear “whether the Paid Family and Medical Leave Insurance Act’s premium violates Section (8)(a) of TABOR” (TABOR being a 1992 state constitutional amendment limiting the state’s financing capabilities).

CCRD reminds Colorado employers, again, that 80-hour pandemic leave continues to remain in effect

In September, the CCRD reminded Colorado employers that the 80 hours of pandemic leave required by Colorado state law remains in effect until at least November 15, 2021, because the federal emergency declaration is still in effect. Now, the CCRD has, in an email to employers dated October 28, 2021, noted that the federal declaration has been extended, so Colorado’s requirement will remain in effect at least until February 13, 2022.

NLRB General Counsel warns, if OSHA rule re vaccine-or-test becomes active again, unionized employers will have duty to give notice and opportunity to bargain over discretionary aspects of the rule

The NLRB issued Memorandum OM 22-03 opining that, if OSHA’s vaccine-or-test rule implementing President Biden’s mandate for employers of 100 or more is ever unfreezed by the courts, then employers with unionized workplaces will have a duty to give their unions notice and an opportunity to bargain. While companies cannot be required to negotiate over whether to comply or any nondiscretionary aspects of the rule, they will be required to give notice and an opportunity to bargain over discretionary aspects of the rule.

Although the General Counsel does not offer advisory opinions and each case stands on its own facts, the General Counsel’s position is that covered employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment—to the extent the ETS provides employers with choices regarding implementation.

Many aspects of OSHA’s now-frozen rule remain unclear, but this seems to include the items specifically mentioned by OSHA in its rule and its preface as being subject to potential collective bargaining:

  • Whether the employer will adopt a mandatory vaccine-or-test policy or OSHA’s permitted alternative policy that would permit employees to opt out of vaccines and instead wear masks and be tested.
  • Whether to adopt one kind of policy for unionized workers even though another was adopted for non-union workers.
  • Whether employees will bear some or all of the costs of vaccines, masks, tests, etc.
  • How much paid leave will be provided to be vaccinated.
  • How much paid leave will be provided to recover.
  • How much paid leave, if any, will be provided for time off when employees who test positive are removed from work.
  • Whether any additional safety measures will be taken related to COVID-19 in the workplace.

Employers of 100 or more with unionized workplaces will need to continue to monitor developments in the courts and be prepared to provide notice and an opportunity to bargain if the OSHA rule is ever unfreezed by the courts.

CDLE, again, reminds Colorado employers that 80-hour pandemic leave remains in effect

On September 30, 2021, the federal tax credit that allowed employers to pass through the costs of pandemic/80-hour leave.  Also on September 30, 2021, the CDLE reminded, again, Colorado employers in an email that Colorado state law continues to mandate that the 80-hour/pandemic leave (“PHEW” leave) be provided at least until November 15, 2021 while the federal emergency declaration remains in effect (plus the 4-week tail required by Colorado state law); in other words, Colorado state law continues to require that the leave be provided, even though the federal tax credit is no longer available.  Here is the CDLE’s email:

Coloradans Are Still Entitled To Employer Provided Covid-Related Paid Sick Leave While Federal Public Health Emergency Remains In Effect

Under the Healthy Families and Workplaces Act (HFWA), Coloradans can take up to 80 hours of paid leave in 2021 for any COVID-related needs. This includes not only having COVID-19, but also going to get a COVID-19 test or vaccine, recovering from any vaccine side effects, following a mandatory quarantine, or caring for a family member with any of those needs.

Colorado’s 80-hour COVID-related leave continues as long as a COVID-related emergency remains “declared by a federal, state, or local public health agency” (C.R.S. 8-13.3-402(9)), and the federal COVID-19 emergency is ongoing. The latest declaration extends through October 18, 2021.

HFWA continues the right to COVID-related leave “until four weeks after” all applicable public health emergencies end or are suspended. That means the earliest possible end date of Coloradans’ HFWA right to 80-hour COVID-related leave is November 15, 2021. However, the Biden administration has publicly stated that the federal emergency declaration will likely extend through year’s end.

For more information on paid sick leave, please see the CDLE Division of Labor Standards and Statistics’ fact sheets, INFOs #6B and 6C. You may also call the Division of Labor Standards and Statistics at 303-318-8441.

Vaccine lawsuits rising

Missed my recent webinar on vaccines in the workplace? Email me or send me a message through this website if interested in the complimentary on-demand presentation. In the meantime, check out this article on Law 360 (no subscription required). Interesting topics include a look at some of these new lawsuits, the need to provide certain accommodations, the importance of considering state laws, and the confusion caused by current vaccines EUA status.

White House clears path for offers of paid time-off for vaccinations

The White House announced a tax credit for companies who wish to offer paid time-off for employees to be vaccinated. The credit is available to employers with fewer than 500 employees, and permits up to 80 hours/10 days of paid time off, up to $511 per day.

This new credit is not only welcome for employers seeking to avail themselves of it, but it also helps alleviate confusion over an employer’s ability to offer pay for time-off to be vaccinated.

CDLE issues an on-demand webinar on Colorado’s new paid leave law known as HFWA

Looking for an overview of Colorado’s new paid leave law known as HFWA (the Healthy Families and Workplaces Act)? To get a better sense of how the CDLE (Colorado Department of Labor and Employment) interprets HFWA? How it will relate to Proposition 118, which will become an entirely new and different paid leave program in Colorado (to be phased in starting as early as next year)?

Check out the CDLE’s newly released, free on-demand webinar, available on YouTube. The CDLE also released its slides for the webinar. PRO TIP: Don’t just read the slides. Check out the webinar, especially the Q&A session following the presentation of the slides. There were some good questions asked that other employers may have about HFWA as well.

Be sure to also check the CDLE’s rulemaking page for its rules re HFWA and its poster page for the required HFWA poster (in English and multiple other languages).

Seventh Circuit holds that employers may have to provide paid USERRA leave if it provides pay for other comparable leaves

USERRA is the federal military leave law that requires employers to provide workers time-off for military-related leaves. USERRA leave is generally unpaid. However USERRA, sec. 4316(b),  provides that employees must receive “such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such or established while such person performs such service.”

The Seventh Circuit recently held in a case involving United Airlines that sec. 4316(b)’s “other rights and benefits” language includes “comparable” paid leave. The Seventh Circuit looked to DOL regulations, 20 CFR 1002.150(b), that explain paid leave is “comparable” and must be provided to USERRA leave-takers if is is comparable in terms of “the duration of the leave,” as well as “the purpose of the leave and the ability of the employee to choose when to take the leave.” However, it cautioned as to the last factor — the ability to schedule leave — an employee’s voluntary decision to enlist should not be considered.

Did United Airlines owe its pilot pay for time he took off for “periodic military-training sessions” under its jury duty policy, its sick leave policy or any of its “other short-term” paid leave policies? The Seventh Circuit held it did not have sufficient evidence to weight the comparability of such leaves; therefore, it remanded the case back to the trial court for further consideration.

Source: White v. United Airlines, Inc., — F.3d —, 2021 WL 365210 (7th Cir. 2/3/2021)

CDLE issues yet more rules, now confirming the need to provide a fresh 80 hours of pandemic leave starting January 1, 2021

The CDLE has issued a new batch of rules and INFO sheets #6B and #6C confirming the need, in Colorado, to issue a fresh 80 hours of pandemic leave. In other words, an employee who has used, for example, 70 of their current 80 hours, will have their remaining 10 hours zeroed out at the close of 12/31/2020, then at the beginning of 1/1/2021, they will need to have their available paid leave requirements augmented to permit a fresh 80 hours; an employee who has used 10 of their current 80 hours, will likewise have their remaining 70 hours zeroed out and be given a fresh 80 hours as well. INFO 6C explains the basis for the requirement to provide this fresh 80 hours, and INFO 6B explains the basic requirements of Colorado 48-hour and 80-hour paid leave requirements under HFWA.

Employers should consider providing all Colorado employees with a copy of the CDLE’s poster and an explanatory memo. As explained in a previous post, employers should carefully craft the language of their memo to meet the other requirements posed in the CDLE’s HFWA rules.

CDLE issues more new information for Colorado employers

Implementing its most recent batch of rules on a variety of topics, the CDLE just issued yet more information for Colorado employers on those topics.

Are your ready for January 1, 2021?

  • Looking for more information about the CDLE’s latest batch of rules?

Join us for a complimentary, engaging and interactive webinar.

L2S Legal, LLC is recognized by SHRM to offer SHRM-CP or SHRM-SCP professional credits (PDCs). This program is valid for 1.0 PDCs.

When: Wednesday, December 16, 2020 Noon 12:00 PM Mountain Time (US and Canada) 

Register in advance for this webinar: https://us02web.zoom.us/webinar/register/WN_vGmrkeFcQ6iaM26Hg3iMGQ 

After registering, you will receive a confirmation email containing Zoom’s information for joining the webinar.

Where to find the CDLE’s latest information

The Colorado Department of Labor and Employment’s latest information is available at its website.

As noted in recent posts on this blog, look for the CDLE’s latest rules on its Rulemaking page, to include the following rules:

  • Colorado Overtime And Minimum Pay Standards (“Comps”) Order #37, 7 CCR 1103-1;
  • Wage Protection Rules, 7 CCR 1103-7;
  • Direct Investigations Rules, 7 CCR 1103-8;
  • Colorado Whistleblower, Anti-Retaliation, Non-Interference, And Notice-Giving (“Colorado Warning”) Rules, 7 CCR 1103-11;
  • Colorado State Labor Relations Rules, 7 CCR 1103-12; And
  • Equal Pay Transparency Rules, 7 CCR 1103-13.

Look for its latest posters on the CDLE’s Poster page (the following list is quoted from CDLE)

  • The “Colorado Overtime and Minimum Pay Standards” (“COMPS”) poster and notice, covering wage and hour law — see COMPS Rule 7.4, Posting and Distribution Requirements, unchanged from the 2020 COMPS Order, which requires employers to display the annually revised poster (and send it to off-site employees), plus include either the poster or COMPS itself in any handbook or manual the employer has.
  • The “Colorado Workplace Public Health Rights Poster: Paid Leave, Whistleblowing, & Protective Equipment” poster and notice, covering HFWA and PHEW since their enactment in July 2020 — see Colorado WARNING Rule 4, Notice and Posting Rights and Responsibilities, unchanged from the temporary WARNING Rules in effect since September 21, 2020, which requires employers to post and give employees notice of these rights.
  • Translations of posters and INFOs — to implement requirements for employers to provide posters and notices to non-English-fluent workers, DLSS in 2020 posted translations of its posters in 12 languages and Spanish translations of INFOs (on the same pages as the English posters and INFOs), with new translations of the 2021-updated posters to be posted later this month, and translations of INFOs coming thereafter.
  • With translations into Spanish and other language.

Look for informational summaries on the CDLE’s INFO page, where the CDLE provides the following information summaries (again quoting the CDLE):

  • INFO# 1: Colorado Overtime &, Minimum Pay Standards Order (COMPS Order) #37 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 1: Orden de COMPS #37] (Próximamente)
  • INFO# 2:DLSS Wage Claim Investigation Process
  • INFO# 3: Tips (Gratuities) and Tipped Employees Under Colorado Wage Law
  • INFO# 4: Meal and Rest Period
  • INFO# 5: Public Health Emergency Whistleblower Rights [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 5: Ley de Protección al Denunciante de Emergencias de Salud Pública] (Próximamente)
  • INFO# 6A: Paid Leave Under the Healthy Families and Workplaces Act, through December 31, 2020 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 6A: Pago por Ausencia Laboral bajo el Acta de Familias y Lugares de Trabajos Saludables, vigente hasta el 31 de diciembre, 2020]
  • INFO# 6B: Paid Leave Under the Healthy Families and Workplaces Act, as of January 1, 2021 [In Spanish:Hoja Informativa y Opinión Formal (INFO por sus siglas en inglés) # 6B: Pago por Ausencia Laboral bajo el Acta de Familias y Lugares de Trabajos Saludables, a partir de 1º de enero] (Próximamente)
  • INFO# 7: Payment of Wages & Required Record-Keeping
  • INFO #8: Colorado Chance to Compete Act (“Ban the Box”)

The CDLE also invites interested individuals to sign up for the agency’s email alerts.

Highlights from the CDLE’s latest information

In recent posts, this blog has summarized a number of the CDLE’s latest rules. Some of the highlights from this most recent information just posted by the CDLE implementing its new rules includes the following:

  • INFO #1: The new hourly minimum wage in Colorado will be $12.32. The new minimum guaranteed salary for exempt workers will be $40,500.
    • Employers are reminded they must distribute a copy of the COMPS poster or the entire COMPS Order 37 (new for this year) with any policies/handbooks that are being distributed otherwise. Signatures must be obtained.
  • INFO #4: The CDLE has taken a strict approach to meals and rest periods, summarized in INFO #4.
    • Employers are responsible for not only “authorizing” workers to take breaks, but they must “permit” them to do so, and CDLE explains a rest break is “authorized” if the company has an adequate policy for example, but even if “authorized,” it is not “permitted” if the employee is “unable or discouraged” to take the break. Evidence that the employee is not “permitted” to take a break may simply be the employee’s own statement that they “felt pressure from the employer not to take the break.
    • It is the employer’s obligation, not the employee’s, to track and record and keep records of employee breaks. An employer cannot simply say it assumed the breaks were being taken as “authorized” where an employee claims not to have been “permitted” to take the break.
    • When a break is missed, it counts as work time, must be paid as such, even if that triggers daily or weekly overtime.
  • INFO #5: In its rules and now in its INFO implementing Colorado’s new PHEW law (already in effect), the CDLE has take the position that an employer who provides no PPE (mask) in a time of a public health emergency may not prohibit an employee from using an unsafe mask. PHEW allows employers to prohibit employees from using masks that do not meet the company’s requirements, only if — according to the CDLE’s interpretation — the employer has first provided its own mask to the worker. Employers should consider making appropriate disposable masks available in their workforces, so that they can later prohibit inappropriate masks that employees might otherwise wish to wear.
  • INFO #7: The CDLE summarized rules regarding the payment of wages, the establishment of pay periods, payment of final wages at separation, pay statement requirements and recordkeeping requirements.
  • INFO #8: The CDLE explained Colorado’s new ban-the-box law. Companies may not state in job applications or advertisements “that a person with a criminal history may not apply,” nor ask about the person’s criminal history on an application, nor require the applicant to disclose any criminal history on the application. Additionally, the CDLE says this prohibits an employer from stating that background checks will be required. Although an employer may require background checks as part of a conditional offer of employment, that may not be stated in an application or advertisement. The CDLE explains the limited exceptions available where employers are otherwise required by law to inquire into these matters.

CDLE finalizes new rules regarding Colorado’s new paid leave laws

As noted in a prior blog post, the CDLE has finalized a crop of new rules on a variety of topics. This post addresses its Wage Protection Rules, effective January 1, 2021.  The Wage Protection Rules focus on issues related to Colorado’s new paid leave law (HFWA, Health Families and Workplace Act). Highlights of the rules include the following:

  • Rule 2.7.4: How to count employees for the purpose of determining whether a small business is under the 16-employee threshold and may, therefore, qualify for delayed implementation of HFWA’s 48 hour/6 day leave requirements until January 1, 2022.
  • Prefatory Statement and Rule 3.5.4(A)-(B): The requirements for a company’s current paid leave policies to satisfy the HFWA requirement for 48 hours (6 days for salaried employees) of general sick leave, to include the following:
    • The policy must provide for at least HFWA’s required 48 hours (6 days).
    • The policy must allow its leave to be taken for all the same reasons as HFWA. Employers are reminded that HFWA permits leave to be taken for more than just the employee’s illness. As summarized by the CDLE in its INFO 6b, HFWA permits an employee to take this time for any of the following reasons:

(1) having a mental or physical illness, injury, or health condition that prevents them from working;

(2) needing to get preventive medical care, or to get a medical diagnosis, care, or treatment, of any mental or physical illness, injury, or health condition;

(3) needing to care for a family member who has a mental or physical illness, injury, or health condition, or who needs the sort of care listed in category (2);

(4) the employee or the employee’s family member having been a victim of domestic abuse, sexual assault, or criminal harassment, and needing leave for related medical attention, mental health care or other counseling, victim services (including legal services), or relocation; or

(5) due to a public health emergency, a public official having closed either (A) the employee’s place of business, or (B) the school or place of care of the employee’s child, requiring the employee needing to be absent from work to care for the child.

    • The policy cannot impose stricter conditions on an employee’s ability to accrue, use and be paid leave, nor can it require notice or documentation (see below) not permitted to be required by HFWA.
      • Employers are reminded that HFWA contains a strict formula for minimum accrual rates, though frontloading is also permitted.
      • Employers are also reminded that HFWA does not permit a delay on usage, such as many sick leave policies that commonly now say sick leave may not be used until after, say, the first 90 days of employment.
    • The policy must also confirm that its leave includes HFWA’s required leave and that, therefore, employees will not receive additional HFWA leave if they use the leave (such as PTO) for other reasons first, except the company will supplement their leave banks as needed to grant 80 hours of pandemic leave in the event of a public health emergency.
      • Employers should carefully consider how they word this disclaimer, so that they do not inadvertently interfere with, minimize, or chill an employee’s HFWA rights.
  • Prefatory statement and Rule 3.5.2: HFWA’s requirement that the employee be paid leave on the basis of “the same rate and with the same benefits, including health benefits,” as if he’d worked, includes all compensation missed while on leave, including base pay, overtime, bonuses, and holiday pay, and even premium pay and shift differentials.
  • Prefatory statement and Rule 3.5.3(C): Explanation that, where an employee is eligible for both HFWA’s 48 hours (6 days for salaried employees) of general sick leave and 80 hours  (10 days for salaried employees) of pandemic leave, the employee must be allowed to take the 80 hours of pandemic leave first before exhausting their other paid leave, such as the 48 hours of HFWA leave.
  • Rule 3.5.3(B): When an employee takes intermittent HFWA leave it is generally taken in 6-minute increments, unless the employer specifies a different increment in its policy, up to 1 hour.
  • Rules 3.5.4-3.5.5: The notice and documentation requirements for leave. Employers are reminded that the documentation requirements are not significant and leave generally cannot be denied for lack of documentation of the sort many employers are used to requiring for sick leave. The CDLE explains the ability for employers to require documents, as follows (emphasis added):

An employer may require “reasonable documentation” that leave is for a HFWA-qualifying purpose only if the leave requested or taken is for “four or more consecutive work days,” C.R.S. § 8-13.3-404(6), defined as four consecutive days on which the employee would have ordinarily worked absent the leave-qualifying condition, not four consecutive calendar days. An employer may not require an employee to provide documentation that leave is for a qualifying reason “related to [a] public health emergency” under C.R.S. § 8-13.3-405(3), (4).

(A) When documentation is required, an employer may request only “reasonable” documentation, which is defined as not more documentation than needed to show a HFWA-qualifying reason for leave, as described in subparts (B), (C), and (D) below, and an employer shall not require disclosure of “details” regarding the employee’s or family member’s “health information” or the “domestic violence, sexual assault, or stalking” that is the basis for HFWA leave (C.R.S. § 8-13.3-412(1)).

(B) To document leave for a health-related need under C.R.S. § 8-13.3-404(1)(a), (b):

(1) If the employee received any services (including remote services) from a health or social services provider for the HFWA-qualifying condition or need, a document from that provider, indicating a HFWA-qualifying purpose for the leave, will suffice.
(2) An employee who did not receive services from a provider for the HFWA qualifying leave, or who cannot obtain a document from their provider in reasonable time or without added expense, can provide their own writing indicating that they took leave for a HFWA-qualifying purpose.

(C) To document leave for a safety-related need covered by C.R.S. §§ 8-13.3-404(1)(c) (i.e., domestic abuse, sexual assault, or criminal harassment): A document under subpart (B)(1) (from a health provider or a non-health provider of legal services, shelter services, social work, or other similar services) or an employee writing under (B)(2) will suffice, as will a legal document indicating a safety need that was the reason for the leave (e.g., a restraining order, other court order, or police report).
(D) Submission of documentation to an employer may be provided (1) by any reasonable method, including but not limited to electronic transmission, (2) at any time until whichever is sooner of an employee’s return from leave (or termination of employment, if the employee does not return), (3) without a requirement of the employee’s signature, notarization, or any other particular document format.
(E) Confidentiality of leave-related information and documentation. Any information an employer possesses regarding the health of an employee or the employee’s family member, or regarding domestic abuse, sexual assault, or criminal harassment affecting an employee or employee’s family member, shall be treated as confidential and may not be disclosed to any other individual except the affected employee, unless the affected employee provides written permission prior to such disclosure. C.R.S. § 8-13.3-412(2)(c). If the information is in writing, it shall be maintained on a separate form and in a separate file from other personnel information, and shall be treated as a confidential medical record by the employer. C.R.S. § 8-13.3-412(2)(a)-(b).

(F) If an employer reasonably deems an employee’s documentation deficient, without imposing a requirement of providing more documentation than HFWA or applicable rules permit, prior to denying leave, the employer must: (1) notify the employee within seven days of either receiving the documentation or the employee’s return to work (or termination of employment, if the employee does not return), and (2) provide the employee the minimum of seven days to cure deficiency after the employee is notified that the employer deems the existing documentation inadequate.

  • Rule 3.5.7 explains an employer’s recordkeeping obligations, including an obligation to keep all records for 2 years.
  • Rule 3.5.7 confirms an employer’s obligation to tell an employee, upon request, how much leave they have accrued and how much they have used. Requests may not be made more often than monthly, except additional requests can be made if there is a possible need for HFWA leave. This information may be communicated to the employee, among other ways, by reflecting such amounts on a pay stub.
    • Employers are cautioned that HFWA and Rule 3.5.7 talk about an employer’s obligation to show accrued and used amounts as if different. It isn’t clear if simply showing the employee’s accrued and unused balance is sufficient. Example compare telling an employee (1) <<This year you accrued 48 hours, of which you have used 8 hours, leaving you 40 hours as of this paycheck>> versus (2) <<You have 40 hours, accrued and unused, as of this paycheck.>>
  • Rule 5.1.4 discusses the CDLE’s authority to issue remedies in the event an administrative claim is filed with it for a violation. These remedies include monetary relief, such as unpaid wages, penalties, and fines, back pay plus either reinstatement or front pay, plus such other amounts as the CDLE finds it is authorized to award.

Employers are reminded that HFWA’s current 80 hours of pandemic leave will expire at the end of 2020. In an informal phone call with the CDLE, this author was advised that the agency believes a declaration effective on or after January 1, 2021 will be required to trigger 80 hours of pandemic leave starting January 1, 2021, in other words, that the current declarations of public health emergencies do not suffice — especially since they predate HFWA’s enactment. In what this author would think is the likely event of future declaration(s) effective on or after January 1, 2021, the CDLE advised that it believes employees will receive a fresh 80 hours at that time; in other words, assume a hypothetical employee has used 71 hours of the current pandemic leave by December 31, 2020, leaving him only 9 hours for this year. A fresh declaration will top his pandemic leave back up to 80 (not 9, nor 9+80=89).

Employers in Colorado should take time to familiarize themselves with these new rules.

CDLE finalizes crop of new rules

The Colorado Department of Labor and Employment (CDLE) has finalized a half dozen rules on a wide array of topics. Employers should take care to immediately familiarize themselves with these rules, as many take effect January 1, 2021. The rules can be found on the CDLE’s rulemaking page, where the CDLE summarizes its new rules with the following table that contains links to the actual rules themselves:

Adopted Rules Clean Version Redline Version Statement of Basis & Purpose

State Labor Relations Rules, 7 CCR 1103-12

PDF PDF PDF
Colorado Whistleblower, Anti-retaliation, Non-interference, and Notice-giving (Colorado WARNING) Rules, 7 CCR 1103-11 PDF PDF PDF
Direct Investigations Rules, 7 CCR 1103-8 PDF PDF PDF
Equal Pay Transparency Rules, 7 CCR 1103-13 PDF PDF PDF
Colorado Overtime and Minimum Pay Standards (COMPS) Order #37, 7 CCR 1103-1 PDF PDF PDF
Wage Protection Rules, 7 CCR 1103-7 PDF PDF PDF

Individuals interested in receiving updates from the CDLE directly when it engages in the rulemaking process, may subscribe with the CDLE here.

Look for follow-up posts on this blog highlighting some of the key developments in some of these rules.

How will Proposition 118’s new paid Family and Medical Leave compare with currently required federal and state paid leave?

As noted on this blog, Colorado voters approved Proposition 118, which will mandate the creation of a new state-administered insurance program to provide paid Family and Medical Leave.

As Colorado employers know, the current federal Family and Medical Leave Act (FMLA) does not require paid leave. However, federal law currently does require paid leave in some instances, most notably up to 80 hours of pandemic leave with the possibility of an additional 10 weeks for pandemic-related childcare/school closure. Colorado’s newly mandated paid leave law already requires similar pandemic leave, plus on January 1, 2021 at least 48 hours of general paid sick leave.

This new Proposition 118 leave will be in addition to these leaves. Proposition 118 leave is not limited to pandemic-related needs. While this new leave will run concurrently with any federal unpaid FMLA leave, a company may not require an employee to exhaust other paid leave prior to taking this leave, though workers and companies may “mutually agree” to make up any difference between lost pay and the benefits provided with such other leave, quoting CRS 8-13.3-410.

Explanatory material in the Colorado legislature’s 2020 Blue Book summarizing Proposition 118, illustrated this benefit formula with the following table (parentheticals added):

Proposition 118 SB 20-205 (the portion of Colorado’s newly mandated paid leave law that is not limited to pandemic-related needs) FMLA
Type of leave Family and medical Medical Family and medical
Length of leave/paid or unpaid 12 weeks (up to 16 for pregnancy or childbirth complications); paid Up to 6 days; paid 12 weeks; unpaid
Eligibility requirements After $2,500 in wages have been subject to premiums Employee earns 1 hour paid sick leave per 30 hours worked; up to 48 hours per year After employee has worked for 12 months
Job protection After working for employer for 180 days N/A Yes
Employer size All employers (with 10 or more employees) Employers with 16 or more employees as of Jan. 2021; all employers beginning Jan. 2022 All elementary and secondary schools; public agencies; private businesses with 50 or more employees
Reasons for leave Birth or adoption of child; caring for self or family member; family member going on active duty in the military; sexual assault/abuse, & stalking Care for employee’s health/safety; care for a person that the employee needs to provide health/safety-related care Birth or adoption of child; caring for family member; family member going on active duty in the military

Interested in more information about Proposition 118 and the other new federal and state paid leave laws?

  • How will all this play out?
  • What do we know?
  • What can we expect?
  • What should HR professionals do to prepare their organizations?

Join us for a complimentary, engaging and interactive webinar.

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When: Thursday, Nov 12, 2020 Noon 12:00 PM Mountain Time (US and Canada) 

Register in advance for this webinar: https://us02web.zoom.us/webinar/register/WN_vGmrkeFcQ6iaM26Hg3iMGQ 

After registering, you will receive a confirmation email containing Zoom’s information for joining the webinar.

DOL reaffirms its FFCRA leave regulations following New York court ruling

Following a New York federal court’s ruling that struck portions of the DOL’s recent regulations governing FFCRA leave, the DOL has issued further rulemaking with expanded explanations. The new rulemaking largely reaffirms the prior regulations, including the specific rules struck by the New York court, but modifies the DOL’s prior rules regarding the FFCRA’s exclusion for employees of a health care provider by limiting the exclusion to those employees who are physicians or other health care providers, or “other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care,” apparently agreeing with the court in the New York case that janitors or cafeteria workers are not excludable, in other words, are entitled to FFCRA leave. The DOL’s new rulemaking will appear in the Federal Register 9/16/2020. The DOL summarizes its new rulemaking, as follows (quoting the DOL):

  1. The Department reaffirms that paid sick leave and expanded family and medical leave
    may be taken only if the employee has work from which to take leave and explains
    further why this requirement is appropriate. This temporary rule clarifies that this
    requirement applies to all qualifying reasons to take paid sick leave and expanded
    family and medical leave.
  2. The Department reaffirms that, where intermittent FFCRA leave is permitted by the
    Department’s regulations, an employee must obtain his or her employer’s approval to
    take paid sick leave or expanded family and medical leave intermittently under
    § 825.50 and explains further the basis for this requirement.
  3. The Department revises the definition of “health care provider” under § 825.30(c)(1)
    to mean employees who are health care providers under 29 CFR 825.102 and
    825.125, and other employees who are employed to provide diagnostic services,
    preventive services, treatment services, or other services that are integrated with and
    necessary to the provision of patient care.
  4. The Department revises § 826.100 to clarify that the information the employee must
    give the employer to support the need for his or her leave should be provided to the
    employer as soon as practicable.
  5. The Department revises § 826.90 to correct an inconsistency regarding when an
    employee may be required to give notice of expanded family and medical leave to his
    or her employer.

With regard to parents of students on hybrid schedules (studying partly in school and partly remotely), the DOL clarified that such parents do not need to obtain permission from the company to take leave on the days the students are working remotely. The DOL explained that such leave is not intermittent leave technically (which would require permission it says, see #2 above) but is simply a day of regular leave.

CDLE issues revised INFO #6A

The CDLE has issued a revised INFO #6A, which is its summary explaining the aspects of Colorado’s new sick leave law taking effect 1/1/2021. The CDLE summarized its changes to INFO #6A, as follows:

(1) Pg. 1: In the list of 3 situations that qualify for leave, a non-substantive wording change to category #3 (leave to care for another person) aims to make clearer that it applies when the person being cared for meets the category #2 definition (being ordered/instructed to quarantine/isolate, due to a risk of COVID-19, by a government agent or health provider).

(2) Pg. 1, footnote 3: As to what is and is not a “bonus” excluded from the regular pay rate that applies to paid leave in 2020, footnote 3 has been added to cite, and explain the answer in, the federal rule that applies to 2020 leave.

(3) Pg. 2: An “Example” of the CBA exemption was deleted because stakeholders have expressed differing views of the exemption that warrant consideration before the Division decides whether to adopt any interpretation.

(4) Pg. 3: An elaboration to the paragraph on how “Policies by any name can comply” cites and explains the federal rule that applies to 2020 leave, which draws a key distinction between employer policies that existed prior to April 1, 2020, and those adopted after that date.

(5) Pg. 2-3: Non-substantive citation edits — without changing any wording, numerical citations were added to the federal rules on what documentation (29 C.F.R. 826.100) and notice (29 C.F.R. 826.90) employees can be asked to provide, and numbers were corrected in two HFWA citations (to the 8-13.3-416 provision against waiver of rights, and the 8-13.3-418 provision recognizing employer rights against employee misconduct).

Of these, item 2 may be of particular interest, in that the CDLE revised INFO 6A to provide that, while on paid leave, sick leave must include payment of any “non-discretionary pay based on pre-determined criteria or formulae (e.g., by production or accuracy), whether called a piece rate, bonus, incentive, or other name.” In other words, in contrast what had seemed clear language in the new statute and in conflict with its prior INFO #6A, the CDLE has — without undertaking rulemaking — decided to re-interpret these new laws as excluding from required sick leave only “discretionary” bonuses.

Governor Polis signs Colorado sick leave laws into effect, requiring IMMEDIATE action by employers

Governor Polis has signed two laws into effect.

The Colorado Department of Labor and Employment (CDLE) has issued summaries of each law (which it calls INFOs).

Additionally, the CDLE has released a poster (Spanish) for immediate posting by covered employers (see below).

Immediate Posting and Notification Obligations

Covered employers are required to immediately:

  • Post the required poster (Spanish).
    • Postings must be made in English and any language that at least 5% of the workforce speaks.
  • Notify employees of their rights under PHEW and HFWA. This notice may be accomplished by distributing in writing or by e-mail the required poster (Spanish).
    • If a company wishes, it may also meet this requirement by distributing copies of INFO 5, 6A and 6B, instead of (or in addition to) the poster.
  • Comply with the other requirements of PHEW and HFWA that took immediate effect (see below).

PHEW – Whistleblower and other protections

As explained in the CDLE’s INFO 5, PHEW applies to Colorado employers irrespective of size and also covers companies (called “principals” in the new law) who contract with five or more independent contractors in a year; it protects their employees and contractors

PHEW provides whistleblower protections for employees who lodge complaints regarding a public health emergency, i.e., who raise “a reasonable concern about workplace violations of government health or safety rules, or about an otherwise significant workplace threat to health or safety, related to a public health emergency.” Additionally it protects those who oppose such unsafe practices or participate in their investigation, determination or remedying. In INFO 5, the CDLE includes these observations regarding this aspect of PHEW:

Reasonableness​: Workers are protected even if they are incorrect about a claimed violation, if their belief was “reasonable” and in “good faith.” Workers are​ not protected for communications (A) that are “knowingly false,” or are made “​with reckless disregard for the truth or falsity of the information,” or (B) that “​share individual health information that is otherwise prohibited from disclosure” by state or federal law. (C.R.S. 8-14.4-102(5)-(6).)

Principal is not required to ​agree ​with, or ​act on, incorrect concerns​: If a worker’s concern is reasonable but incorrect, the principal is not required to agree with it, or to take any action the worker requests. It just cannot fire or otherwise act against the worker for raising that concern (for example, with a demotion, discipline, a cut in pay or hours, or an undesired transfer or shift change).

PHEW requires companies to allow individuals to wear their own desired pandemic-related safety gear, so long as it is more (not less) protective than that required by law and by the company.

A principal must allow, and cannot act against a worker for, “voluntarily wearing at the worker’s workplace the worker’s own personal protective equipment, such as a mask, faceguard, or gloves” (“PPE”) — with these limits and conditions on the PPE that the worker has a right to wear (C.R.S. 8-14.4-102(3)):

  • only PPE that “provides ​a higher level of protection than the equipment provided by the principal”;
  • only PPE that “is recommended by a federal, state, or local public health agency with jurisdiction over the worker’s workplace”; and
  • only PPE that “does not render the worker incapable of performing the worker’s job or prevent a worker from fulfilling the duties of the worker’s position.”

PHEW prohibits non-disclosure agreements that would otherwise impair an employee’s rights under PHEW. 

HFWA – Sick leave and other requirements

As explained in the CDLE’s INFO 5 and 6, HFWA takes effect in three stages.

Stage 1: HFWA’s immediate requirements

Effective immediately, all employers, irrespective of size, must

  • Offer leave that mirrors the federal FFCRA (Cares Act) leave currently required for coronavirus purposes.
    • While this new state law mirrors the requirements of the federal FFCRA, it expands the FFCRA in at least one major respect. This new Colorado law now requires such leave for employers of all sizes; whereas, the FFCRA does not apply to companies with more than 500 workers and has possible exemptions for employers with fewer than 15 workers.
    • Additionally HFWA offers no tax credits for the payment of this new leave. Whereas the FFCRA allows for the costs of such leave to be passed through effectively to the federal government in the form of tax credits, this means large employers who are not subject to the FFCRA apparently will have to absorb the costs of this new leave.  
    • The process for requesting and granting HFWA leave tracks the FFCRA’s in many respects, including the types of documentation involved.
      • However, the HFWA explicitly states that an employee’s failure to provide documentation or advance notice is generally not grounds for denying the leave.  “Documentation is not required to take paid sick leave, but can be required as soon as the employee reasonably can provide it” (quoting the CDLE’s INFO 6A).

Notice can be oral, and must provide only enough information for an employer to determine whether the leave is for an HWFA purpose. An employer may not require notice to include information or documentation beyond what is allowed in the documentation above. An employee’s representative (​e.g., spouse, adult family member, or other responsible party) may provide the notice if the employee cannot do so personally. If an employee fails to give notice, the employer must notify the employee of the failure and provide an opportunity to provide notice before denying the requested leave.

    • Existing leave policies can comply if they otherwise meet or exceed the HFWA’s requirements.
  • Post the required poster (Spanish).
  • Notify workers of their HFWA rights (see above regarding doing so by distribution of the poster and/or INFO 5, 6A and 6B).

Workers have complaint and anti-retaliation protections; however, the anti-retaliation provisions do not protect employee abuse of the HFWA as explained by the CDLE in INFO 6B:

HFWA disallows acting against employees for ​incorrect complaints or information, as long as the employee’s belief was reasonable and in good faith. (C.R.S. 8-13.3-407(3).) Employers ​can impose consequences (firing or otherwise) for misusing paid leave, dishonesty, or other leave-related misconduct. (C.R.S. 8-13.3-408.)

  • Example: ​An employer denies an employee paid leave for a “life coach” appointment. The employee files a complaint at the Division, and tells coworkers the employer is wrongly denying paid leave. The Division rules that this appointment was ​not HFWA-covered. That means the employer did nothing wrong by denying leave. But without evidence the employee’s belief that HFWA covered the appointment was unreasonable or in bad faith, the employer ​can’t ​ take action against the employee for requesting leave, filing a complaint, or telling co-workers she believed the employer violated HFWA.
  • Example:​ An ​employer​ grants​ an ​employee ​request ​for​ paid​ leave​ for a ​blood ​test ​and​ physical​ exam.​ The employer then learns the employee went bowling and never really had that appointment, so it (A) denies the request for paid leave and (B) fires the employee for dishonest misuse of leave. The employee files a complaint claiming (A) denial of paid leave and (B) retaliation against using HFWA rights. The employer did nothing wrong: (A) leave was not for an HFWA purpose, and (B) the firing was not retaliation because by taking leave with no HFWA purpose, the employee did not act reasonably or in good faith.

Stage 2: HFWA’s 1/1/2021 requirements

Effective 1/1/2021, for companies with more than 15 employees:

  • The HFWA’s (and FFCRA’s) pandemic sick leave requirements will have ended. Instead, an employer will be required to offer at least 48 hours (for hourly and 6 days for salaried workers) of sick leave for employees when
  1. having a mental or physical ​illness, injury, or health condition that prevents them from working;
  2. needing to get ​preventive medical care​, or to get a ​medical ​diagnosis, care, or treatment​, of any mental or physical illness, injury, or health condition;
  3. needing to ​care for a family member ​who has a mental or physical illness, injury, or health condition, or who needs the sort of care listed in category (2);
  4. the employee or the employee’s family member having been a victim of ​domestic abuse, sexual assault, or criminal harassment​, and needing leave for related medical attention, mental health care or other counseling, victim services (including legal services), or relocation; or
  5. due to a ​public health emergency​, a public official having ​closed ​either (A) the employee’s ​place of business​, or (B) the ​school or place of care ​of the employee’s child, requiring the employee needing to be absent from work to care for the child.
  • That leave will have to accrue at least at the rate of 1 hour per every 30 hours worked. Leave may be front loaded.
  • That leave may be capped at 48 hours per year.
  • That leave must be allowed to roll-over year-to-year (though again subject to a cap if the employer so elects).
  • That leave must be allowed for hourly and salaried employees, whether full-time or part-time, with accruals starting on the date of hire.
  • Note: Existing leave policies can comply if they otherwise meet or exceed the HFWA’s requirements.
    • With regard to PTO policies in particular, the 48 hour/6 day requirement is met so long as the full compliment of PTO exceeds such amounts. ‘Compliance can be through a broader paid leave policy, such as allowing “paid time off” for any purpose, health-related or not — as long as the policies (A) provide as much time off as HFWA requires, (B) for all conditions and situations that HFWA covers.”‘
    • Still relying on existing policies may be difficult for many companies as current sick leave policies often (a) provide for leave only when employees are sick (not for the other reasons set forth above), (b) provide only 5 not 6 sick days, (c) apply to employees after a 90-day probationary period and (d) do not cover part-time employees. These are just some examples of the kinds of current sick leave policies that will need to be revised to come up to HFWA’s requirements.
      • Additionally, policies should be revised to impose the permitted 48 hour/6 day cap; otherwise, as required, the sick leave will carry over and continue to accrue year after year.
  • Provide for at least 80 hours of sick leave in the event of another public health emergency. This leave will not be required in addition to the 48 hours/6 days required above; rather, leave requirements may be supplemented to cover the 80-hours of pandemic leave in the event of another public health emergency.
  • And as with the initial pandemic-leave requirements (see above), the HFWA explicitly states that an employee’s failure to provide documentation or advance notice is generally not grounds for denying the leave.
    • Additionally documentation may only be required when the absence is of 4 or more days, per CRS 8-13.3-404(6).

Stage 3: HFWA’s 1/1/2022 requirements

Effective 1/1/2022, the HFWA’s requirements will attach to employers of 15 or fewer.

HFWA and part-time employees

As noted, HFWA leave is required for part-time employees.

In footnote 2 of INFO 6A, the CDLE explains that Stage 1 HFWA leave (FFCRA-type pandemic leave) is to be provided to part-time employees, as follows:

​Leave for a part-time employee with a regular schedule is at the number of hours normally worked in a two-week period. If an employee’s hours vary, the employer must use their average hours over the six months before the leave. If the varied-schedule part-timer was employed less than six months, the employer must use the number of hours the employee agreed to work when hired, or if no such agreement exists, the average daily hours the employee was scheduled to work over their entire employment. (These are methods the U.S. Department of Labor adopted, 29 C.F.R. 826.21(b), so employers can use them for federal and Colorado law.)

And footnote 5 of INFO 6B explains the same for the availability of Stages 2 and 3 HFWA leave (general sick leave) for part-time employees, as follows:

​Leave for a part-time employee with a regular schedule is at the number of hours normally worked in a two-week period. If an employee’s hours vary, employers must use the employee’s average hours over the six months before leave started. If the varied-schedule part-timer has been employed less than six months, the employer must use the number of hours the employee agreed when hired, or if there is no such agreement, the average daily hours the employee was scheduled to work over their entire employment. Any of these calculations include hours the employee took leave, in addition to hours worked. (These are the methods the U.S. Department of Labor adopted, so employers can use the same method for federal and Colorado law.)

HFWA and CBAs

As explained in the CDLE’s INFO 6B, the HFWA allows for collectively bargained leave instead so long as it is “equivalent or more” than the HFWA requires:

Example: ​ A CBA can depart from the HFWA requirement that leave must be in hourly increments, but cannot eliminate HFWA rights to take leave without interference (or, relatedly, to file a complaint if HFWA is violated). 

HFWA and business closures

When Stage 2/3 HFWA leave kicks in, it will not be required for periods when an “entire business” is “completely closed.”

No paid leave required if an entire business is completely closed​. ​Unless a workplace is closed due to a temporary government quarantine/isolation order, no paid leave applies ​if an entire business is completely closed ​(whether temporarily or permanently) – because then, workers aren’t on “leave,” they’re on furlough or layoff (which makes unemployment insurance, not paid leave, the possible remedy).

Defining a public health emergency

Both PHEW and HFWA discuss the phrase “public health emergency” as periods recognized as such by ‘either (A) “a public health order issued by a state or local public health agency” or (B) “a disaster emergency declared by the governor based on a public health concern”’ (quoting the CDLE’s INFO 5). The CDLE notes in footnote 3 of INFO 6B that, starting at least 1/1/2021, a public health emergency need not be related to coronavirus.

Counting years

In footnote 4 of its INFO 6B, the CDLE states that, unless an employer specifies otherwise, years will be counted, at least for HFWA purposes, on the basis of a calendar year. 

If an employer doesn’t say otherwise, the “year” when paid leave accumulates is a ​calendar​ year, because HFWA’s broad leave requirements all start with calendar years: January 1, 2021, for most employers; January 1, 2022, for small employers. But an employer ​can ​ choose a different annual cycle if (A) it tells employees in writing in advance, and (B) switching to a different cycle doesn’t diminish employee HFWA rights. 

Successor liability

The HFWA imposes successor liability on a buyer who “acquires all of an organization, a trade, or a business or substantially all of the assets of one or more employers,” quoting CRS 8-13.3-402(12). See also CRS 8-13.3-403(8).

Documentation and forms for requesting FFCRA coronavirus-related sick leave and coronavirus-related FMLA leave

In a prior post, it was noted that the DOL had issued its final rules regulating the FFCRA. As explained there, the DOL regulations summarize the documentation that employers should keep for coronavirus-sick and coronavirus-FMLA leave granted under the FFCRA.

→Reminder: FFCRA-covered employers are reminded that in addition to this required documentation, they must have already posted-distributed an FFCRA poster.

In terms of the documentation required in the new DOL regulations, the IRS has also issued its own guidance regarding documentation that will be required for FFCRA (in other words, CARES Act) tax credits:

How Should an Employer Substantiate Eligibility for Tax Credits for Qualified Leave Wages?

An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if, in addition to the information set forth in FAQ 44 (“What information should an Eligible Employer receive from an employee and maintain to substantiate eligibility for the sick leave or family leave credits?”), the employer creates and maintains records that include the following information:

  1. Documentation to show how the employer determined the amount of qualified sick and family leave wages paid to employees that are eligible for the credit, including records of work, telework and qualified sick leave and qualified family leave.
  2. Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages. See FAQ 31 (“Determining the Amount of Allocable Qualified Health Plan Expenses”) for methods to compute this allocation.
  3. Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the employer submitted to the IRS.
  4. Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS (or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on Form 941).

An Eligible Employer should keep all records of employment taxes for at least 4 years after the date the tax becomes due or is paid, whichever comes later.  These should be available for IRS review.

Employers looking to develop forms for requesting the coronavirus-related sick leave or the coronavirus-related FMLA leave may wish to start with two such forms recently published by the Society for Human Resource Management (SHRM) on its coronavirus-page of resources, then consult with their own legal counsel and tax professional to ensure they will not only comply with the FFCRA’s requirements but also be able to assert the available tax credits.

DOL issues regulations under the FFCRA regarding newly mandated coronavirus sick- and FMLA- leave

The DOL has issued regulations implementing the FFCRA’s newly mandated coronavirus sick- and FMLA-leave. The regulations address many topics, including the following highlights. Look for additional information as the new regulations are analyzed.

  • The definition of “Telework,” which includes the statement that an employee is not “able to Telework” if there are any “extenuating circumstances (such as serious COVID-19 symptoms) that prevent
    the Employee from performing that work” (parenthetical in original), sec. 826.10.
  • A flesh-out of each of the six reasons that qualify for the new paid coronavirus sick leave, sec. 826.20. This includes specifically with regard to reason 4 (“seeking medical diagnosis for COVID-19”) that the employee need merely be “experiencing any of the” recognized symptoms of COVID-19, which be only a “dry cough.” However, leave is limited to the time the employee is ” unable to work because the Employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19.”
  • The DOL also clarified in sec. 826.20(b), and especially in its prefatory language explaining that new regulatory language, that both the new coronavirus sick- and FMLA- leaves will be available when a parent is needed to care for a child who is under 18 years old or (clarifying what had seemed language in the new law that contradicted the actual FMLA) who is “18 years of age or older and incapable of self-care because of a mental or physical disability.”
  • How the amount of coronavirus sick- and FMLA- leave should be calculated, and how pay for the same should be calculated, sec. 826.21-.25.
  • How eligibility for the new coronavirus FMLA-leave is determined. As previously noted, the new coronavirus sick leave is available to all employees of a covered employer, while the new coronavirus FMLA leave is available only to employees who have been on payroll for at least 30 calendar days. Sec. 826.30 explains how that is to be calculated.
  • How employees are to be counted to determine if the employer is covered, i.e., if the employer employers fewer than 500 employees, sec. 826.40. All employees are to be counted. One part-time employee counts as one employee (not 1/2 for example). Employees who work for the company count even if they also count as employees of a Joint Employer. Likewise, true independent contractors are not counted. Employees of affiliated entities generally will count towards their actual employer (not its affiliate), again absent joint-employer status.
  • Sec. 826.40 also explains that the small business exemption available to employers of fewer than 50 is available, upon self-certification (that must be documented, preserved but not filed with DOL unless requested) by “an authorized officer of the business” that:

(i) The leave requested under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;

(ii) The absence of the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or

(iii) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA, and these labor or services are needed for the small business to operate at a minimal capacity.

  • How intermittent leave will work and that, unlike regular FMLA leave, intermittent leave for both the new coronavirus sick- and FMLA-leaves will be available ” only if the Employer and Employee agree. The Employer and Employee may memorialize in writing any agreement under this section, but a clear and mutual understanding between the parties is sufficient.” Sec. 826.50. Also that these new leaves are available to an employee who has been offered Telework “only when the Employee is unavailable to Telework because of a COVID-19 related reason” (see also above regarding the definition of Telework).
  • Sec. 826.60 provides for the two new leaves to run concurrently in certain situations, if both are needed, with the new coronavirus sick leave being used first, and an employee who exhausts these paid leaves may choose, but not be required to substitute other paid leave to cover the unpaid portion of any gap.
  • Sec. 826. 90 explains the types of notice that an employee can be required to give, which include rules generally prohibiting the requirement of notice sooner than “after the first workday (or portion thereof) for which an Employee takes” the new leave (parenthetical in original) and requiring an employer to give notice and an opportunity to provide required documentation prior to denying the request for leave. For example sec. 826.90 provides, as follows:

 Notice may not be required in advance, and may only be required after the first workday (or portion thereof) for which an Employee takes Paid Sick Leave or Expanded Family and Medical Leave. After the first workday, it will be reasonable for an Employer to require notice as soon as practicable under the facts and circumstances of the particular case. Generally, it will be reasonable for notice to be given by the Employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the Employee is unable to do so personally.

  • Sec. 826. 100 provides further explanation of the kinds of documentation that can be required for particular types of leave needed.

 826.100 Documentation of Need for Leave.

(a) An Employee is required to provide the Employer documentation containing the following information prior to taking Paid Sick Leave under the EPSLA [sick leave] or Expanded Family and Medical Leave under the EFMLEA:

(1) Employee’s name;

(2) Date(s) for which leave is requested;

(3) Qualifying reason for the leave; and

(4) Oral or written statement that the Employee is unable to work because of the qualified reason for leave.

(b) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(i), an Employee must additionally provide the Employer with the name of the government entity that issued the Quarantine or Isolation Order.

(c) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(ii) an Employee must additionally provide the Employer with the name of the health care provider who advised the Employee to self-quarantine due to concerns related to COVID-19.

(d) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(iii) an Employee must additionally provide the Employer with either:

(1) the name of the government entity that issued the Quarantine or Isolation Order to which the individual being care for is subject; or

(2) The name of the health care provider who advised the individual being cared for to self quarantine due to concerns related to COVID-19.

(e) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(v) or Expanded Family and Medical Leave, an Employee must additionally provide:

(1) the name of the Son or Daughter being cared for;

(2) the name of the School, Place of Care, or Child Care Provider that has closed or become unavailable; and

(3) a representation that no other suitable person will be caring for the Son or Daughter during the period for which the Employee takes Paid Sick Leave or Expanded Family and Medical Leave.

(f) The Employer may also request an Employee to provide such additional material as needed for the Employer to support a request for tax credits pursuant to the FFCRA. The Employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided. For more information, please consult https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided
by-small-and-midsize-businesses-faqs.

  • Sec. 826.130 guarantees the worker a “right to be restored to the same or an equivalent position” if the job still exists, in other words, the section also clarifies that the “Employee is not protected from employment actions, such as layoffs, that would have affected the Employee regardless of whether he or she took leave. In order to deny restoration to employment, an Employer must be able to show that an Employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.” The section also recognizes that very small employers of fewer than 25 employees (see above regarding counting) may be protected by an exemption from the restoration obligation subject to four conditions set forth in sec. 826.130(b)(3).
  •  Sec. 826.140 details recordkeeping requirements for four years.

DOL updates its Q&A re new coronavirus sick-/FMLA- leave law

The DOL has updated its Q&A regarding the new coronavirus sick-/FMLA- leaves. Added answers include:

  • Employees who are already or who become subject to layoffs/furloughs will generally not be entitled to either of these new leaves.
  • Employees who are assigned to telework are only entitled to these new leaves if they are unable to telework as a result of one of the qualifying reasons for these sick-/FMLA-leaves.
  • Employees, including teleworking employees, are entitled to intermittently take both of these new sick-/FMLA-leaves (assuming they meet one of the qualifying reasons).

Employers of fewer than 500 should review the updated Q&A immediately in its entirety.

BREAKING NEWS: DOL has issued the poster REQUIRED to be “posted” re coronavirus sick-/FMLA- leave

Employers who are subject to the new FFCRA (Families First Coronavirus Response Act) sick-/FMLA- leave are required to post a poster by the FFCRA’s effective date, April 1, 2020. The EEOC has just issued the required poster along with a Q&A that answers common questions employers will have regarding the same, including explaining that, where a workplace has suffered reductions due to coronavirus it may be necessary to issue the poster by email or so-called snail mail — but not to already furloughed or laid off workers nor in languages other than English. The Q&A provides, as follows:

 

DEFINITIONS

“Paid sick leave” – means paid leave under the Emergency Paid Sick Leave Act.

“Expanded family and medical leave” – means paid leave under the Emergency Family and Medical Leave Expansion Act.

QUESTIONS & ANSWERS

  1. What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act?The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.
  2. As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

    In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

  3. If I am a private sector employer and have 500 or more employees, do the Acts apply to me?No. Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.[1]
  4. If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.
  5. How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.
  6. When calculating pay due to employees, must overtime hours be included?Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

    If the employee’s schedule varies from week to week, please see the answer to Question 5, because the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee.

    Please keep in mind the daily and aggregate caps placed on any pay for paid sick leave and expanded family and medical leave as described in the answer to Question 7.

    Please note that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.

  7. As an employee, how much will I be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?It depends on your normal schedule as well as why you are taking leave.If you are taking paid sick leave because you are unable to work or telework due to a need for leave because you (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, you will receive for each applicable hour the greater of:
    • your regular rate of pay,
    • the federal minimum wage in effect under the FLSA, or
    • the applicable State or local minimum wage.

    In these circumstances, you are entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

    If you are taking paid sick leave because you are: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, you are entitled to compensation at 2/3 of the greater of the amounts above.

    Under these circumstances, you are subject to a maximum of $200 per day, or $2,000 over the entire two week period.

    If you are taking expanded family and medical leave, you may take paid sick leave for the first ten days of that leave period, or you may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer’s policy. For the following ten weeks, you will be paid for your leave at an amount no less than 2/3 of your regular rate of pay for the hours you would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, you will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when you are on leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

    To calculate the number of hours for which you are entitled to paid leave, please see the answers to Questions 5-6 that are provided in this guidance.

  8. What is my regular rate of pay for purposes of the FFCRA?For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave.[2] If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.If you are paid with commissions, tips, or piece rates, these amounts will be incorporated into the above calculation to the same extent they are included in the calculation of the regular rate under the FLSA.

    You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

  9. May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?No. You may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.
  10. If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both—how do they interact?You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.Please note that you can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
  11. Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.
  12. Is all leave under the FMLA now paid leave?No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
  13.  Are the paid sick leave and expanded family and medical leave requirements retroactive?No.
  14. How do I know whether I have “been employed for at least 30 calendar days by the employer” for purposes of expanded family and medical leave?You are considered to have been employed by your employer for at least 30 calendar days if your employer had you on its payroll for the 30 calendar days immediately prior to the day your leave would begin. For example, if you want to take leave on April 1, 2020, you would need to have been on your employer’s payroll as of March 2, 2020.If you have been working for a company as a temporary employee, and the company subsequently hires you on a full-time basis, you may count any days you previously worked as a temporary employee toward this 30-day eligibility period.
  15. What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits.  If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, you may also require your employee to provide you with any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.
  16. What documents do I need to give my employer to get paid sick leave or expanded family and medical leave?You must provide to your employer documentation in support of your paid sick leave as specified in applicable IRS forms, instructions, and information.Your employer may also require you to provide additional in support of your expanded family and medical leave taken to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons. For example, this may include a notice of closure or unavailability from your child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider. Your employer must retain this notice or documentation in support of expanded family and medical leave, including while you may be taking unpaid leave that runs concurrently with paid sick leave if taken for the same reason.

    Please also note that all existing certification requirements under the FMLA remain in effect if you are taking leave for one of the existing qualifying reasons under the FMLA. For example, if you are taking leave beyond the two weeks of emergency paid sick leave because your medical condition for COVID-19-related reasons rises to the level of a serious health condition, you must continue to provide medical certifications under the FMLA if required by your employer.

  17. When am I able to telework under the FFCRA?You may telework when your employer permits or allows you to perform work while you are at home or at a location other than your normal workplace. Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.
  18. What does it mean to be unable to work, including telework for COVID-19 related reasons?You are unable to work if your employer has work for you and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework.If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.
  19. If I am or become unable to telework, am I entitled to paid sick leave or expanded family and medical leave?If your employer permits teleworking—for example, allows you to perform certain tasks or work a certain number of hours from home or at a location other than your normal workplace—and you are unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then you are entitled to take paid sick leave.Similarly, if you are unable to perform those teleworking tasks or work the required teleworking hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then you are entitled to take expanded family and medical leave. Of course, to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available.
  20. May I take my paid sick leave or expanded family and medical leave intermittently while teleworking?Yes, if your employer allows it and if you are unable to telework your normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, you and your employer may agree that you may take paid sick leave intermittently while teleworking. Similarly, if you are prevented from teleworking your normal schedule of hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you and your employer may agree that you can take expanded family medical leave intermittently while teleworking.You may take intermittent leave in any increment, provided that you and your employer agree. For example, if you agree on a 90-minute increment, you could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.

    The Department encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the Department is supportive of such voluntary arrangements that combine telework and intermittent leave.

  21. May I take my paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)?It depends on why you are taking paid sick leave and whether your employer agrees. Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:
    • You are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
    • You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
    • You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    • You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
    • You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

    Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

    If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

    In contrast, if you and your employer agree, you may take paid sick leave intermittently if you are taking paid sick leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if your child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.

    The Department encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave on less than a full work day for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the Department is supportive of such voluntary arrangements.

  22. May I take my expanded family and medical leave intermittently while my child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if I am not teleworking?Yes, but only with your employer’s permission. Intermittent expanded family and medical leave should be permitted only when you and your employer agree upon such a schedule. For example, if your employer and you agree, you may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.The Department encourages employers and employees to collaborate to achieve flexibility. Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the Department supports such voluntary arrangements.
  23. If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.
  24. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  25. If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  26. If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave?No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  27. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.
  28. If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work? No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.You may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule. If you do, the amount of leave to which you are entitled is computed based on your work schedule before it was reduced (see Question 5).
  29. May I collect unemployment insurance benefits for time in which I receive pay for paid sick leave and/or expanded family and medical leave?No. If your employer provides you paid sick leave or expanded family and medical leave, you are not eligible for unemployment insurance. However, each State has its own unique set of rules; and DOL recently clarified additional flexibility to the States (UIPL 20-10) to extend partial unemployment benefits to workers whose hours or pay have been reduced. Therefore, individuals should contact their State workforce agency or State unemployment insurance office for specific questions about eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  30. If I elect to take paid sick leave or expanded family and medical leave, must my employer continue my health coverage? If I remain on leave beyond the maximum period of expanded family and medical leave, do I have a right to keep my health coverage?If your employer provides group health coverage that you’ve elected, you are entitled to continued group health coverage during your expanded family and medical leave on the same terms as if you continued to work. If you are enrolled in family coverage, your employer must maintain coverage during your expanded family and medical leave. You generally must continue to make any normal contributions to the cost of your health coverage. See WHD Fact Sheet 28A: https://www.dol.gov/agencies/whd/fact-sheets/28a-fmla-employee-protections.If you do not return to work at the end of your expanded family and medical leave, check with your employer to determine whether you are eligible to keep your health coverage on the same terms (including contribution rates). If you are no longer eligible, you may be able to continue your coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). COBRA, which generally applies to employers with 20 or more employees, allows you and your family to continue the same group health coverage at group rates. Your share of that cost may be higher than what you were paying before but may be lower than what you would pay for private individual health insurance coverage. (If your employer has fewer than 20 employees, you may be eligible to continue your health insurance under State laws that are similar to COBRA. These laws are sometimes referred to as “mini COBRA” and vary from State to State.) Contact the Employee Benefits Security Administration at https://www.dol.gov/agencies/ebsa/workers-and-families/changing-jobs-and-job-loss to learn about health and retirement benefit protections for dislocated workers.

    If you elect to take paid sick leave, your employer must continue your health coverage. Under the Health Insurance Portability and Accountability Act (HIPAA), an employer cannot establish a rule for eligibility or set any individual’s premium or contribution rate based on whether an individual is actively at work (including whether an individual is continuously employed), unless absence from work due to any health factor (such as being absent from work on sick leave) is treated, for purposes of the plan or health insurance coverage, as being actively at work.

  31. As an employee, may I use my employer’s preexisting leave entitlements and my FFCRA paid sick leave and expanded family and medical leave concurrently for the same hours?No. If you are eligible to take paid sick leave or expanded family and medical leave under the FFCRA, as well as paid leave that is already provided by your employer, unless your employer agrees you must choose one type of leave to take. You may not simultaneously take both, unless your employer agrees to allow you to supplement the amount you receive from paid sick leave or expanded family and medical leave under the FFCRA, up to your normal earnings, with preexisting leave. For example, if you are receiving 2/3 of your normal earnings from paid sick leave or expanded family and medical leave under the FFCRA and your employer permits, you may use your preexisting employer-provided paid leave to get the additional 1/3 of your normal earnings so that you receive your full normal earnings for each hour.
  32. If I am an employer, may I supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?If your employee chooses to use existing leave you have provided, yes; otherwise, no. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements, including Federal employees. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave, up to the employee’s normal earnings. Note, however, that you are not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid or exceeds the limits set forth under Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.However, you are not required to permit an employee to use existing paid leave to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. Further, you may not claim, and will not receive tax credit, for such supplemental amounts.
  33. If I am an employer, may I require an employee to supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?No. Under the FFCRA, only the employee may decide whether to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. The employee would have to agree to use existing paid leave under your paid leave policy to supplement or adjust the paid leave under the FFCRA.
  34. If I want to pay my employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can I do so and claim a tax credit for the entire amount paid to them?You may pay your employees in excess of FFCRA requirements. But you cannot claim, and will not receive tax credit for, those amounts in excess of the FFCRA’s statutory limits.
  35. I am an employer that is part of a multiemployer collective bargaining agreement, may I satisfy my obligations under the Emergency Family and Medical Leave Expansion Act through contributions to a multiemployer fund, plan, or program?You may satisfy your obligations under the Emergency Family and Medical Leave Expansion Act by making contributions to a multiemployer fund, plan, or other program in accordance with your existing collective bargaining obligations. These contributions must be based on the amount of paid family and medical leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.
  36. I am an employer that is part of a multiemployer collective bargaining agreement, may I satisfy my obligations under the Emergency Paid Sick Leave Act through contributions to a multiemployer fund, plan, or program?You may satisfy your obligations under the Emergency Paid Sick Leave Act by making contributions to a multiemployer fund, plan, or other program in accordance with your existing collective bargaining obligations. These contributions must be based on the hours of paid sick leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.
  37. Are contributions to a multiemployer fund, plan, or other program the only way an employer that is part of a multiemployer collective bargaining agreement may comply with the paid leave requirements of the FFCRA?No. Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provide that, consistent with its bargaining obligations and collective bargaining agreement, an employer may satisfy its legal obligations under both Acts by making appropriate contributions to such a fund, plan, or other program based on the paid leave owed to each employee. However, the employer may satisfy its obligations under both Acts by other means, provided they are consistent with its bargaining obligations and collective bargaining agreement.

With that, the DOL issued two additional Q&A’s re how coronavirus relates to the FLSA (Fair Labor Standards Act) and the FMLA(Family and Medical Leave Act).

 

 

DOL issues enforcement guidance urging staff to recognize a “temporary non-enforcement period” for “reasonable” and “good faith” compliance

The DOL issued Field Assistance Bulletin no. 2020-1 urging its staff to recognize a “temporary non-enforcement period” for employers who are in “reasonable” and “good faith” compliance. To qualify for the benefit of this “non-enforcement period,” the employer must establish all of the following:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.  As explained in a Joint Statement by the Department, the Treasury Department and the Internal Revenue Service (IRS) issued on March 20, 2020, [2]  this program is designed to ensure that all covered employers have access to sufficient resources to pay required sick leave and family leave wages.[3]

  2. The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”).

  3. The Department receives a written commitment from the employer to comply with the Act in the future.

In other words, an employer who has taken no steps to try to come into compliance with the FFCRA (Families First Coronavirus Response Act) will likely not qualify for the benefits of this “temporary non-enforcement period,” and an employer that has at least tried may qualify for some mitigation but will nonetheless be required to come into compliance, though it may have some time to remedy the violation “as soon as practicable” and may have the benefit of not having the DOL taking further enforcement actions against it in the meantime.

DOL issues preliminary Q&A re new coronavirus sick and FMLA leave rights

The DOL has issued a preliminary Q&A on the newly mandated coronavirus-related sick- and FMLA-leave rights. The Q&A answers some but not all of the questions previously raised to DOL. Highlights of the Q&A include the following:

  • The effective date of this new Act will now be April 1, 2020 (moved up from the initial tentative date of no later than April 2, 2020).
  • How employees should be counted for the purpose of determining if a company falls into the exemption for large companies (employing 500 or more), including how to count for related companies (including affiliates) and possible joint employer relationships.
  • How the new coronavirus sick leave hours should be counted for part-time workers.
  • How much sick leave should be paid for workers who would, otherwise, have worked overtime.
  • How employees who qualify for both the new coronavirus sick-leave and the new coronavirus paid FMLA-leave should be paid.
  • The DOL’s interpretation that paid leave provided prior to the new Act’s effective date (now, April 1, 2020) does not count towards these new requirements.
  • How to count the 30-day eligibility period for new hires re the new coronavirus FMLA-leave law.

The DOL advises that regulations will be forthcoming as may be additional guidance.

For brevity’s sake, the DOL’s analysis of these, and the other topics it addresses, are not restated here. Rather employers are encouraged to immediately review the DOL’s Q&A in full.

IRS begins clarifying how employers can recoup coronavirus-related leave expenditures

As previously posted, Congress enacted this week two new forms of coronavirus-related leave: sick leave and coronavirus-FMLA leave. Today, 3-20-2020, the IRS issued a memo beginning to explain how employers will be able to recoup expenses for the same and advising that further explanation will be forthcoming next week:

When employers pay their employees, they are required to withhold from their employees’ paychecks federal income taxes and the employees’ share of Social Security and Medicare taxes.  The employers then are required to deposit these federal taxes, along with their share of Social Security and Medicare taxes, with the IRS and file quarterly payroll tax returns (Form 941 series) with the IRS.

Under guidance that will be released next week, eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS.

The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees.

If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. The details of this new, expedited procedure will be announced next week. 

Questions arise for regulatory clarification re coronavirus leave

As noted, Congress enacted two new forms of coronavirus leave this week: sick and FMLA-type leave. Bloomberg BNA reports that the DOL held a townhall today 3-20-2020 to invite suggestions for regulatory clarification and that questions raised in that townhall included:

  • How the exemption for small employers (less than 50 workers) will be interpreted? How will the 50-worker threshold be counted? Will there be any other requirements or will all employers with fewer than 50 workers be exempted?
  • How the exemption for large employers (more than 50 workers) be interpreted? How will the 500 workers be counted?
  • How will existing paid and sick leave interface with these two new forms of leave?
  • Will amounts paid to furloughed workers as a result of the coronavirus events count towards these two new forms of leave?
  • How will the new coronavirus-FMLA leave interact with regular FMLA leave for individuals who experience both coronavirus-related and un-related medical conditions?
  • How will the Treasury Department clarify the rules for how and when employers may assert the tax reimbursement credit to offset payments for these two new forms of leave?

As previously posted, the DOL is expected to issue its regulations — without prior notice or opportunity to comment — no later than the Act’s effective date, and as early as next week.

BREAKING NEWS: Congress passes mandatory sick leave and paid FMLA leave re coronavirus

Late March 18, 2020, Congress passed then the President signed into law the Families First Coronavirus Response Act, HR 6201.

  • The Act will take effect “not later than 15 days” after its enactment March 18, 2020, in other words, absent further development, April 2, 2020. (UPDATE: The effective date has been set for April 1, 2020.) It will sunset December 31, 2020.
  • The Act requires two types of leave, both include paid leave components.
    • Both types of leave apply to employers with fewer than 500 employees.
    • Employers of fewer than 50 employees will theoretically be able to seek exemption from the leave requirements if they would “jeopardize the viability of the business as a going concern.” The Act does not explain further. Rather it delegates to the DOL authority to develop regulations and processes to flesh out this possible exemption.
    • Special rules may also permit exemption of “certain health care providers and emergency responders,” again without explanation in the Act, as to be fleshed out by DOL regulations.
  • First, the Act provides for up to 80 hours of sick leave, in the event (1) the employee is subjected to a federal, state or local quarantine/isolation order re coronavirus, (2) the employee has been advised by a healthcare provider to self-quarantine re coronavirus, (3) the employee’s own coronavirus experience, or the employee is (4) caring for an individual subject to a quarantine/isolation order, (5) caring for a child whose school or daycare is closed, or (6) similar conditions as specified by government officials.
    • Sick leave for reasons 1-3 (generally the employee’s own condition) is capped at $511 per day.
    • Sick leave for reasons 4-6 is capped at $200 per day.
    • This sick leave will be available to all employees. Unlike the FMLA leave below, it does not appear to require a 30-day period of employment for eligibility.
  • Second, the Act amends the FMLA to provide for 12 weeks of leave when an employee is unable to work (or telework) because the employee must care for a child under the age of 18 whose daycare, elementary or high school has been closed due to coronavirus.
    • The first 10 days are unpaid. Employees can opt (but not be required) to substitute other paid leave.
    • The remaining 10 weeks of FMLA is paid at 2/3rds of the employee’s regular pay up to $200 per day and $10,000 total aggregate.
    • This coronavirus-specific FMLA leave will be available to employees who have been employed for at least 30 days.
    • The Act modifies the FMLA’s job-restoration requirements (in ways arguably not yet fully clear and hopefully to be determined by DOL regulation), recognizing that following the coronavirus crisis many positions will no longer exist.
    • Please note the coverage (fewer than 500 employees) and eligibility (30-days employment) requirements. This will mean that many (many) more employers and employees will be covered by coronavirus-FMLA than would otherwise be covered by the FMLA in general.
  • The Act (again without sufficient detail to be fully clear) provides for 100% tax credits to permit employers to offset the costs of providing such leave (by offsets against Social Security taxes).
  • The DOL is required to publish a poster within 7 days, summarizing the Act.

UPDATE: The DOL has begun rulemaking to develop regulations, which it hopes to deliver no later than the Act’s effective date, if not sooner. The DOL will bypass the normal process of publishing proposed rules first by invoking governmental-agency emergency authority to publish immediately effective final rules and invite comment on the same thereafter for possible later revisions.