Workplace Fairness

Arizona’s Earned Paid Sick Time law, applies when an employer closes a facility because it is ordered to do so by a public health official due to a public health emergency. All affected employees are entitled to use their earned paid sick time while they are not working because of the closure. “Public health emergency” is defined to include closure of the employee’s place of business or the school/place of care of the employee’s child.

Colorado Department of Labor and Employment published emergency rules, the Colorado Health Emergency Leave with Pay (“HELP”) Rules, temporarily requiring employers in certain industries to provide paid sick leave to employees awaiting COVID-19 testing and results. 

HELP rules only provide emergency paid leave to cover the period required for testing.  The rules do not require wage employers to provide wage replacement should an employee test positive and require quarantine resulting in lost work time.

Employees must give notice of the need for leave under the HELP rules as soon as practicable, and preferably, within 24 hours of being prescribed the test.  Employers may request documentation from a health care provider showing the prescription of a COVID-19 test and date thereof, or from provider of the test showing that the test was performed and the date thereof; provided, however, that an employer may not terminate an employee for inability to provide documentation during an illness covered by the HELP rules.

[Ed. Note: On March 26, the Colorado Department of Labor and Employment modified the Emergency Rule Requiring Paid Sick Leave to add coverage for not just those “being tested” for COVID-19, but also those “under instructions from a health care provider to quarantine or isolate due to a risk of having COVID-19.”]

[Ed. Note: On April 27, the Colorado Department of Labor and Employment expanded the amount of sick leave required to be provided by Colorado employers from four days’ full pay to two weeks (up to 80 hours) at 2/3 pay for employees with either flu-like or other respiratory illness symptoms and who is being tested for COVID-19, or those under instructions to quarantine or isolate from either a health care provider or an authorized government official.]

[Ed. Note: On July 14, Colorado’s Health Emergency Leave with Pay (HELP) rules were replaced by the Colorado Healthy Families and Workplaces Act (HFWA). HFWA requires most Colorado employers to provide up to 2 weeks (up to 80 hours) of COVID-19-related paid leave through December 31, 2020. The HFWA requires that paid sick leave be paid in the amounts and for the purposes specified in the federal Families First Coronavirus Response Act (FFCRA). The HFWA applies to: (1) employees who are experiencing COVID-19 symptoms and seeking a medical diagnosis, (2) employees who were advised by a health provider or government agent to self-quarantine, and (3) employees who are taking care of someone else due to COVID-19-related reasons. For employees in the third category, employers may pay employees 2/3 of their regular pay rate. Under the HFWA, employers may require employees to provide documentation that the leave is for a HFWA purpose.]

Delaware Department of Human Resources issued guidance to state employees about coronavirus and potential impacts on the state workforce. Full-time and casual/seasonal state employees may be eligible for 14 or 30 days of Paid Emergency Leave if they are forced to miss work due to a coronavirus impact, or to care for a family member.

The District of Colombia enacted the COVID-19 Response Emergency Amendment Act of 2020, which provides a number of workforce protection.  In the employment context, the Act amends the District of Columbia’s FMLA statute to waive the one-year employment and 1,000 hour work requirements for eligibility during periods when the Mayor of D.C. has declared a public health emergency.  These relaxed eligibility requirements only apply to employees who have been ordered or recommended to quarantine or isolate by the Department of Health, any other agency, or a medical professional.

The Act also provides that any employee who is unable to work as a result of circumstances giving rise to a public health emergency during a period for which the Mayor has declared a public health emergency is entitled to “declaration-of-emergency” leave during such period.  At this point, however, the Act is light on additional details regarding declaration-of-emergency leave.

[Ed. Note: On May 27, the District of Columbia’s COVID-19 Response Emergency Act of 2020 was replaced with the Coronavirus Support Emergency Amendment Act of 2020. This act amends the D.C. Accrued Sick and Safe Leave Act (ASSLA) to require employers with between 50 and 499 employees (other than “health care providers”) to provide eligible employees with up to 2 weeks of paid “public health emergency leave” at full pay for any reason for which paid leave is available under the federal Families First Coronavirus Response Act (FFCRA). The act also expands the D.C. Family and Medical Leave Act (DCFMLA) to require all employers with one or more employees in D.C. to provide 16 weeks of unpaid, “COVID-19” leave to employees who are unable to work due to COVID-19, or must take care of a family member.]

In Florida, Section 8B-11.1 of the Code of Miami-Dade County, Unlawful Retaliation Against Employees During Emergencies or Disasters states that upon a declaration of a state of emergency applicable to any portion of Miami-Dade County, it shall be unlawful for any employer to retaliate or threaten to retaliate against a non-essential employee who complies with County evacuation orders or other County Executive Orders issued during a declared state of local emergency.

Maryland passed an emergency act that gives the governor certain emergency powers for the duration of the state of emergency that was declared on March 5, 2020.  These emergency powers include, among other things, the authority to prohibit employers from terminating employees solely on the basis that the employee has been required to be isolated or quarantined.  The Act also authorizes the Secretary of Labor to determine that an individual is eligible for unemployment benefits, even if they have not separated from their employer, if: (i) the individual’s employer temporarily ceases operations due to COVID-19, presenting the employee from coming to work; (ii) the individual is quarantined due to COVID-19 with the expectation of returning to work after the quarantine is over; or (iii) the individual leaves employment due to a risk of exposure or infection of COVID-19 or to care for a family member due to COID-19.

The New York State Legislature passed an emergency bill requiring employers to provide differing amounts of sick leave to employees affected by COVID-19, based on employer size.  Leave under the law is limited to any employee subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19, except when an otherwise eligible employee is asymptomatic or not yet diagnosed and is physically able to work while under quarantine or isolation (including remote work).  A mandatory or precautionary order of quarantine or isolation due to COVID-19 is sufficient to trigger the leave if issued by the State, the Department of Health, or any governmental entity.

Leave under this law is to be provided without loss to an employee’s existing accrued sick leave.  However, the law provides that if the federal government provides for sick leave benefits related to COVID-19, the provisions of the NY law are only available to the extent they exceed the benefits under the federal law.

New Jersey statute Title 22 26:13-16 concerning emergency health powers allows for reinstatement of employment after isolation or quarantine. For any person who has been placed in isolation or quarantine and who, at the time of quarantine or isolation, was in the permanent employ of any public or private employer, may be reinstated to such employment or to a position of like seniority, status and pay. This statute will apply, unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so. To qualify, the employee must:

• receives a certificate of completion of isolation or quarantine issued by the department or the authorized local health department;
• is still qualified to perform the duties of such position; and
• makes application for reemployment within 90 days after being released from isolation or quarantine.

[Ed. Note: On April 14, 2020, New Jersey Governor Phil Murphy signed into law Senate Bill 2374 (S2374), which amends the New Jersey Family Leave Act (NJFLA) and the New Jersey Family Leave Insurance law (NJFLI) to provide job-protected,  paid leave to care for family members quarantined due to COVID-19. The bill also amends the NJFLA to provide for job-protected unpaid leave to care for children due to COVID-19 school closures.  The legislation also allows employers to seek certification relating to these expanded categories of leave, allows highly paid employees to take leave if the leave is COVID-19-related, and provides that COVID-19-related leave may be taken on an intermittent basis. These new provisions are retroactively effective as of March 25, 2020.]

New Mexico statute NMSA 12-10A-16 prohibits termination in a declared public health emergency. Under the bill, an employer cannot terminate an employee who is placed in isolation or quarantine pursuant to the provisions of the Public Health Emergency Response Act.

Pennsylvania Statute Title 43 P.S. Labor § 1482 prohibits an employer from terminating or disciplining an employee for failing to report to work due to road closures in the county of the employer's place of business, or the employee's county of residence, resulting from a state of emergency declared by the Governor under 35 Pa.C.S. § 7301 (relating to general authority of Governor) or 75 Pa.C.S. § 6108 (relating to power of Governor during emergency).

In Pittsburgh employees may begin using accrued sick time on the 90th calendar day after the commencement of employment. Sick time may be used when: (1) an employee’s workplace is closed due to a public health emergency, (2) when an employee needs to care for a child whose school or place of care has been closed due to a public health emergency, (3) or when an employee needs to care for a family member whose presence in the community would jeopardize the health of others.

Employers do not need to provide any payment for unused sick leave upon the termination of employment. However, if an employee is rehired within six months, all previously accrued but unused sick time must be reinstated. 

Oregon’s sick leave law, ORS 653.616(6), specifies that staying home during a public health emergency is an allowable use of sick time. “Public health emergency” includes employee workplace closures and school or childcare closures of an employee’s child. The Oregon Bureau of Labor and Industries (BOLI) has developed guidance specific to COVID-19 and sick time. BOLI interprets the sick time law to provide an employee with a right to use sick time for closure of a child's school or place of care by order of a public official for a public health emergency, among other reasons, similar to the Oregon Family Leave Act protected leaves. BOLI also provides guidance beyond the use of sick time related to COVID-19.

Rhode Island’s Healthy and Safe Families and Workplaces Act allows employees to use earned sick time for workplace closures due to a public health emergency. “Public health emergency” is defined to include employee workplace closures and school or childcare closures of an employee’s child.

Under Texas Labor Code 22:001 an employer may not discharge or in any other manner discriminate against an employee who leaves the employee's place of employment to participate in a general public evacuation ordered under an emergency evacuation order.

Virginia’s Public Health Emergency Leave Policy permits or requires eligible employees to attend to the medical needs of self and immediate family members by providing up to 80 hours of paid leave per leave year when Communicable Disease of Public Health Threat conditions as defined in Section 32.1-48.06, et. seq Code of Virginia, have been declared by the State Health Commissioner and Governor.