As the pandemic drags on, employers’ obligations to pay employees when they need to be out of work due to having COVID-19, or having had a COVID-19 exposure, are changing.
The federal Families First Coronavirus Response Act (“FFCRA”) expired on December 31, 2020, and along with it the obligation for many employers with under 500 employees to provide up to two weeks (80 hours) of paid sick leave on top of other paid time off the company may provide. The law allowed employers to obtain a tax credit in 2020 against their federal employment taxes for certain amounts paid. However, the tax credit has now been extended until March 31, 2021 should employers voluntarily provide this emergency paid sick leave.
California’s emergency paid sick leave law that paralleled the FFCRA for employers with more than 500 employees expired along with the FFCRA.
Employers with employees in New York should be mindful that New York’s COVID-19 emergency paid sick leave law continues and requires up to 14 days of paid COVID-19-related sick leave depending on the size of the company, for employees subject to an order of quarantine or isolation. Companies with under 100 employees need to provide only 5 paid days, and very small businesses may need to only provide unpaid time off. Recent NY Department of Labor guidance clarifies that employees may be entitled to receive up to three blocks of this paid sick leave, which also is in addition to any other paid time off the company provides.
Other states’ general paid sick leave laws, such as New Jersey’s, were expanded to cover COVID-19-related reasons, without expanding the amount of paid leave a company needed to provide.
Additionally, certain localities have newly enacted generally applicable paid sick leave laws. For instance, starting January 1, 2021, Colorado has enacted a general paid sick leave law requiring certain employers to allow employees to accrue up to 48 hours of paid sick leave per year.
It remains to be seen whether the federal government will take any action to further extend the FFCRA or supplant it with other employer requirements.
The legal landscape for employer paid sick leave obligations is ever changing.
An employers’ obligations to employees who cannot come to work due to contracting COVID-19 or otherwise being under an order of quarantine or isolation, and who cannot work from home, stem from a number of sources. Federal, state, and local laws come into play, as well as the company’s own policies and practices. It would be prudent for employers to consult with experienced employment counsel to identify their rights and obligations in these situations.