Foley & Lardner LLPIn the months since COVID-19 reached American shores, the mantra for employees who cannot telework has been if you feel sick, stay home.  Staying home when feeling ill is a key element of stopping the spread of COVID-19.  To help encourage this behavior, the Families First Coronavirus Relief Act (the “Act”) provides for up to 80 hours of paid leave for employees who work for employers with fewer than 500 employees.  The federal government supports this initiative through tax credits to help pay these employees’ wages.  However, because the law applies only to employers with fewer than 500 employees, up to 100 million American workers are not eligible for this paid leave. In addition, a recent federal court ruling found that the U.S. Department of Labor’s interpretation of the Act is too broad, exempting too many workers—including certain health care workers and workers on furlough— from its coverage.  As the pandemic continues, states are stepping forward to fill the gaps.

Several states are considering legislation to expand the availability of paid sick leave, with many states taking targeted approaches to serve their residents. Nevada legislators, for example, are focused on protections, including paid sick leave, for hospitality employees, including those employed by hotels, casinos, and resorts. A California legislative committee is working on a bill to provide paid sick leave to essential workers in the food industry—an industry that has been hit particularly hard through the pandemic. Massachusetts is considering a bill that would extend paid sick leave to employees of large businesses in the state and, in Michigan, legislation has been proposed to allow employees to use paid leave to care for other family members when their usual care providers are unavailable.  While the Act provides expanded paid Family and Medical Leave for parents when child care is unavailable, the Michigan bill would allow paid leave, for example, for elder care. Pennsylvania is similarly considering legislation that would provide paid leave to frontline essential workers who have symptoms of or exposure to COVID-19.

New York and Colorado have taken a more aggressive approach.  Beginning January 1, 2021, employers in Colorado must provide up to 80 supplemental hours of paid sick leave in any future public health emergency, in addition to requiring accrual of regular paid sick leave.  New York enacted a similar measure in March 2020, requiring large employers to provide at least 14 days of paid sick leave and requiring some smaller employers to provide access to benefits, including sick leave and short-term disability, during the pandemic.  New Jersey, taking a different approach, expanded the existing family leave policy to require employers to provide unpaid but job-protected leave for up to 12 weeks to employees caring for sick or quarantined family members, or for children who are out of school due to COVID-19.

Employers in each of these states should keep a close eye on this pending legislation, including final terms and dates of implementation, to ensure compliance in this ever-changing landscape.  

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