Benefit News

DOL Revises FFCRA Paid Leave Regulations, California Mandates COVID-19 Paid Sick Leave

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.

Summary Of Revisions To FFCRA Regulations

The revisions reaffirm and provide additional explanation for two provisions of the regulations:

  • The requirement that employees may take FFCRA leave only if work would otherwise be available to them applies to all qualifying reasons to take leave.
  • The requirement that an employee have employer approval to take FFCRA leave intermittently.

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.

Summary of California Supplemental Paid Sick Leave Law

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:

  • Those workers in private companies whose employer has 500 or more employees in the United States; and
  • Certain health care providers or emergency responders whose employer (public or private) had elected to exclude them from the paid sick leave requirements under the Emergency Paid Sick Leave Act.

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:

  • He or she is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • A health care provider has advised him or her to self-quarantine or self-isolate due to concerns related to COVID-19; or
  • The employer has prohibited him or her from working due to health concerns related to potential transmission of COVID-19.

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).

Posting Requirement

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.

Miscellaneous

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.

For additional information, please contact your Burnham Benefits Consultant or Burnham Benefits at 949-833-2983 or inquiries@burnhambenefits.com.


Burnham Benefits does not engage in the practice of law and this publication should not be construed as the providing of legal advice or a legal opinion of any kind. The consulting advice we provide is intended solely to assist in assessing its compliance with the Patient Protection and Affordable Care Act and other applicable federal and state law requirements, and is based on Burnham Benefit’s interpretation of federal guidance in effect as of the date of this publication. To the best of our knowledge, the information provided herein, and assumptions relied on, are reasonable and accurate as of the date of this publication. Furthermore, to ensure compliance with IRS Circular 230, any tax advice contained in this publication is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the United States Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter.

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