September 16, 2020
The U.S. Department of Labor (DOL) has issued revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The revisions were issued in response to a New York federal court decision that struck down parts of the regulations. The revisions take effect September 16, 2020. The leaves available under the FFCRA are set to expire on December 31, 2020.
In addition, California has signed into law, AB 1867 requiring supplemental paid sick leave statewide for workers for COVID-19-related purposes, effective September 19, 2020. Under the law, employers must provide leave to individuals who were exempted from emergency paid sick leave under the Emergency Paid Sick Leave Act, established by the FFCRA. AB 1867 also codifies a previously issued executive order that established COVID-19 supplemental paid sick leave for food sector workers.
The requirement to provide COVID-19 supplemental paid sick leave for covered workers also will expire on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act, if later.
The revisions reaffirm and provide additional explanation for two provisions of the regulations:
The DOL also narrowed the definition of “health care provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act (FMLA) regulations or who are employed to provide services that are integrated with and necessary to the provision of patient care, which if not provided, would adversely impact patient care (such as diagnostic, preventive or treatment services).
In addition, revisions also clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable (rather than always prior to taking leave).
For expanded family and medical leave, advance notice is not prohibited and is typically required if the need for leave is foreseeable, such as when an employee has advance notice of a school closing.
A summary of AB 1867 follows.
Workers Eligible for Paid Sick Leave
AB 1867 expands eligibility for paid sick leave to include those workers not covered under the Emergency Paid Sick Leave Act, including the following:
Individuals who do not leave their residence to work for their employer are not eligible. Certain food sector workers covered by a separate leave requirement are also exempt.
Reasons for Leave
To qualify for supplemental paid sick leave under AB 1867, a covered worker must be unable to work due to one of the following three reasons:
Paid Leave Amount
Full-time workers may receive up to 80 hours of paid leave. Part-time workers may receive benefits equal to the total number of hours they are normally scheduled to work over two weeks.
Payment of sick leave for all the above reasons is to made based on the higher of the local minimum wage, the state minimum wage, or the employee’s regular rate, up to a total of $5,110 per employee ($511 per day).
A model notice relating to COVID-19 supplemental paid sick leave for covered workers will be made available for purposes of the posting requirements under existing law. The bill would permit notice by electronic means in lieu of posting, for purposes of COVID-19 supplemental paid sick leave only, if a hiring entity's covered workers do not frequent a workplace.
AB 1867 also creates a family leave mediation pilot program that will permit an employer with between 5-19 employees, or their employees, to request all parties to participate in mediation through the Department of Fair Employment and Housing’s dispute resolution division, within 30 days of an employee’s receipt of a right-to-sue notice alleging a violation. Under the program, which will sunset January 1, 2024, upon receipt of a request to participate in the mediation, the statute of limitations for the employee’s claims would be tolled until the mediation is complete.
In addition, the bill mandates that food sector workers be permitted to wash their hands as needed, or at a minimum, every 30 minutes.
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