Paid Leave and Coronavirus — Part 30: Paid Leave For COVID-19 Vaccines and “Kin Care” Come to Nevada

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Seyfarth Synopsis: Nevada Governor Steve Sisolak recently signed into law Senate Bill 209 (“SB209”) and Assembly Bill 190 (“AB190”). SB209 requires private employers to provide employees with up to four hours of paid leave to receive the COVID-19 vaccine. It further amends Nevada’s Paid Leave Law by adding a non-exhaustive list of reasons for which employees may take paid leave. AB190 allows employees to use a portion of their accrued employer-provided paid or unpaid sick leave to care for the employee’s immediate family members. SB209 went into effect immediately upon the Governor’s approval on June 9, 2021, and AB190 goes into effect on October 1, 2021.

Nevada is home to a growing number of leave and time off mandates. In our previous update, we discussed Nevada’s Paid Leave Law (“PTO Law”) and the subsequent PTO Law guidance released by the Nevada Labor Commissioner’s Office. When Nevada’s PTO Law went into effect on January 1, 2020, it became the first state in the country to impose a PTO mandate on private employers.[1]

Then, in August 2020, Nevada responded to the COVID-19 pandemic by enacting paid leave and workplace safety regulations for “public accommodation facilities” in the state.[2] The paid leave portion of the mandate generally provides between 3 and 14 days of leave depending on the reason for leave. Covered absences related to COVID-19 generally include testing positive for COVID-19, experiencing symptoms of COVID-19, and close contact with an employee or guest who has been diagnosed with COVID-19.[3]

Over the last several weeks, Nevada gained two additional leave and time off mandates. The first, SB209, amends the state’s PTO Law and creates a new COVID-19 vaccine paid leave mandate.[4] The second, AB190, creates what is known in some states as a “kin care” law (i.e., a law that does not require an employer to provide sick time, but rather requires employers that have sick pay policies or benefits to allow employees to use a portion of that time to cover family member illnesses).[5]

Here are the highlights of both SB209 and AB190:

SB209 - Updates to Nevada PTO Law

As noted above, SB209 amends the Nevada PTO Law by requiring that covered employers allow their employees to use available paid leave for: (1) treatment of a mental or physical illness, injury or health condition; (2) receiving a medical diagnosis or medical care; (3) receiving or participating in preventative care; (4) participating in caregiving; or (5) addressing other personal needs related to the health of the employee. This list is not exhaustive, however, as the amendment makes clear that covered employers must “allow an employee to use paid leave for any use.”

SB209 - COVID-19 Vaccination Paid Leave

SB209 further requires that private employers with 50 or more employees in Nevada provide their employees with up to four hours of paid leave to obtain their own COVID-19 vaccination. As noted above, the vaccine paid leave mandate took effect immediately on June 9, 2021, and is set to expire on December 31, 2023.

The amount of vaccine paid leave an employer must provide depends on whether the employee receives a one or two dose COVID-19 vaccine. An employee receiving a two-dose COVID-19 vaccine would be able to take up to two consecutive hours off for each dose, for a total of four hours of paid leave. An employee receiving a one-dose vaccine would be able to take up to two consecutive hours off, for a total of two hours of paid leave. Notably, Nevada COVID-19 vaccine paid leave is in addition to the paid leave called for under the Nevada PTO Law.

Before taking vaccine paid leave, an employee must give his or her employer at least 12-hours’ notice. Employers are required to keep a record of each employee’s receipt or accrual and use of vaccine paid leave for at least one year.

Employers are prohibited from retaliating against employees for using vaccine paid leave, and from denying employees their right to use the leave. This specifically includes requiring an employee to find a replacement worker before taking COVID-19 vaccine paid leave.

There are two exceptions under the SB209 COVID-19 vaccine paid leave mandate that allow employers to forgo providing their employees the paid leave. These exceptions include (1) employers who are within their first two years of operation, and (2) employers who provide on-site COVID-19 vaccination clinics accessible to their employees during employees’ regular working hours.

The Nevada Labor Commissioner is charged with preparing a bulletin explaining the benefits created by SB209, and posting such bulletin online. Covered employers are required to post this bulletin conspicuously in the workplace. A copy of the bulletin is available here.

SB209 is silent on a number of details, such as a definition of “employee,” documentation, and method of enforcement. However, SB209 states that it amends Chapter 608 of the Nevada Revised Statutes (NRS), and thus covered employers likely can look to that Chapter of the NRS for instruction on certain topics pending further guidance from the state.[6]

AB190 - Codifies Kin Care in Nevada

AB190, which takes effect on October 1, 2021, requires employers who voluntarily provide paid or unpaid sick leave to allow their employees to use that sick leave to care for an immediate family member who has an illness, injury, medical appointment or other authorized medical need. “Immediate family” is defined to include a child, foster child, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, stepparent, and any person for whom the employee is the legal guardian.

Employers must allow their employees to use accrued sick leave to care for the immediate family member to the same extent and under the same conditions that apply to the employee when taking sick leave for other purposes. The Nevada kin care law requirements do not apply to employees covered by a valid collective bargaining agreement.

Employers may limit the amount of sick leave an employee can take to care for an immediate family member to an amount equal to, but not less than, the amount of sick leave the employee would accrue during a 6-month period. An employer may not deny an employee the right to use accrued sick leave to care for an immediate family member under the terms of the kin care law, nor can an employer retaliate against an employee for exercising his or her rights under the law. The provisions of AB190 are enforceable by the Labor Commissioner, and violations of AB190’s provisions are a misdemeanor that can carry a fine of up to $5,000 per violation.

Similar to SB209, the Nevada Labor Commissioner is charged with preparing a bulletin explaining the benefits created by AB190, and posting such bulletin online. Covered employers must post the bulletin conspicuously in the workplace. A copy of the bulletin is available here.

Employer Takeaways

Covered employers should review their current paid time off policies and practices for compliance with the newly enumerated reasons for use under SB209. Further, covered employers must update their paid leave practices to incorporate Nevada COVID-19 vaccine paid leave, including appropriate recordkeeping and posting. Finally, employers that voluntarily provide their employees with paid or unpaid sick leave should update their policies and practices to allow employees to use sick leave to care for immediate family members under the conditions of the impending kin care law by its October 1 effective date.

With the COVID-19 and paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with Nevada COVID-19 and non-COVID paid leave laws, and paid leave requirements more generally. Consult Seyfarth’s COVID-19 Resource Center for updated information regarding the rapidly evolving COVID-19 situation and its impact on the workplace.

To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to paidleave@seyfarth.com.

[1] Nevada is one of three jurisdictions in the United States that currently imposes a PTO mandate on private employers. The other two mandates are in Maine and Bernalillo County, NM. The Maine and Bernalillo County, NM PTO mandates went into effect on January 1, 2021 and October 1, 2020 respectively.

[2] Under the mandate, “public accommodation facility” or “facility” means a hotel and casino, resort, hotel, motel, hostel, bed and breakfast facility or other facility offering rooms or areas to the public for monetary compensation or other financial consideration on an hourly, daily or weekly basis.

[3] Per guidance from the state, the COVID-19 “public accommodation facility” paid leave mandate “expires at the end of the emergency or on July 1, 2023, whichever is sooner.”

[4] New York State also imposes a COVID-19 vaccine paid leave mandate on employers. Several other locations, including California, permit employees to use supplemental paid sick leave for COVID-19 vaccines, among other reasons.

[5] “Kin care” laws exist in a number of states, including, but not limited to: California; Georgia; and Illinois.

[6] NRS Section 608.010 defines “Employee” to include “both male and female persons in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.”

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