The purpose of this article is to detail recent changes to COVID-19 laws that may apply to your business.  If your business is in the healthcare industry, if you employ emergency responders, or if you have 500 or more employees anywhere in the United States, these new laws apply to your business.

Introduction

Two significant changes expand existing COVID-19 paid leave laws and create a new California COVID-19 related leave program. Both laws may affect the types of paid leave programs available to employees within your business, affecting your obligation to provide FFCRA leave.

First, the Secretary of Labor published revisions and clarifications to the emergency paid sick leave and expanded family medical leave established under the Families First Coronavirus Response Act (FFCRA), set to expire December 31, 2020. These revisions are effective September 16, 2020 and alter the definition of “health care provider,” making more employees eligible for FFCRA leave. Accordingly, employees within your health care business who were previously excluded from FFCRA leave may now qualify. The FFCRA applies only to employers with fewer than 500 employees.

Second, on September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”), which established COVID-19 Supplemental Paid Sick Leave for employees who are employed by private businesses of 500 or more employees or are employed by certain types of health care providers. This bill is effective on September 19, 2020 and expires December 31, 2020.

These two changes are described more fully below.

New Leave Obligations – Employers in the Health Care Industry with Fewer than 500 Employees

After the State of New York successfully challenged portions of the FFCRA, the Department of Labor reexamined provisions within the FFCRA and has now altered the definition of “health care provider.” This expanded definition makes more employees eligible for FFCRA leave, and requires an examination of the employee’s job duties to determine if they are eligible for FFCRA leave.

Originally, the FFCRA focused on the employer’s industry or business, stating that any employee employed by a “health care provider” is excluded from eligibility for FFCRA leave. Finding that this definition excluded too many employees—contrary to the law’s intended purpose—the DOL revisions require analysis of skills, role, duties, or capabilities of the employee. Specifically, the DOL revised the definition of “health care provider” to mean employees who are employed to provide diagnostic services, preventative services, treatment services, or services that are so integrated and necessary that their absence would negatively affect patient care. Employees whose duties fall into one of those categories may be excluded from FFCRA leave. The DOL provided the following examples of the types of duties in each category that would cause an employee to be excluded from FFCRA eligibility:

  • Diagnostic Services: Taking or processing samples; performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.
  • Preventative services: Screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.
  • Treatment Services: Performing surgery or other invasive or physical intervention, administering or providing prescribed medication, or providing or assisting in breathing treatments.
  • Services that are integrated with and necessary to diagnostic, preventative, or treatment services that, if not provided, would adversely impact patient care: Bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, transporting patients and samples.

The DOL also provided a non-exhaustive list of employees that fall under the definition of “health care provider,” meaning their duties fall within the above categories and they are excluded from FFCRA eligibility:

  • Nurses, nurse assistants, medical technicians, and any other persons who directly provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
  • Employees providing diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care under the supervision, order, or direction of, or providing direct assistance to nurses, nurse assistants, medical technicians, and other persons who directly provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
  • Employees who may not directly interact with patients and/or who might not report to another health care provider or directly assist another health care provider, but nonetheless provide services that are integrated with and necessary components to the provision of patient care, such as a lab technician.

With this new definition, there are many employees of health care providers who were previously excluded from FFCRA leave eligibility who will now be eligible if they meet the other eligibility requirements. The DOL’s non-exhaustive list of employees whose job duties do not fall within the above definition of health care provider and are thus eligible for FFCRA leave include:

  • Information technology (IT) professionals;
  • Building maintenance staff;
  • Human Resources personnel;
  • Cooks;
  • Food service workers;
  • Records managers;
  • Consultants; and
  • Billers

Employers in the health care industry who have fewer than 500 employees will have to reevaluate the eligibility criteria they apply when an employee requests FFCRA leave. For more information visit https://www.dol.gov/agencies/whd/pandemic or the DOL’s FAQ page https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

New Leave Obligations Applicable to Employers with 500 or More Employees in the United States, And Employers of Health Care Providers and Emergency Responders Regardless of the Number of Employees Employed by the Business

AB 1867 establishes a COVID-19 Supplemental Paid Sick Leave (SPSL) program that applies to:

  1. Employers with 500 or more employees in the United States; and
  2. Employers of any size who employ health care providers or emergency responders.

Employees are eligible for SPSL if they leave their place of residence to perform work, and are either employed by an employer that has 500 or more employees in the United States, or are employed as a health care provider (using the above detailed definition) or emergency responders, and employer has excluded them from emergency paid sick leave under the FFCRA.

When the above requirements are met, employers shall provide SPSL to an employee if the employee is:

  • Subject to a federal, state, or local quarantine or isolation order related to COVID-19; OR
  • Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; OR
  • Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Employers must provide eligible employees with 80 hours of SPSL if the employee is either considered as full time, or has worked—or was scheduled to work—on average of at least 40 hours per week in the two weeks before the date that the employee took SPSL.

An eligible employee who works fewer than 40 hours per week, SPSL is to be provided as follows:

  • For employees who have a normal weekly schedule, employers shall provide the same number of hours that the employee is normally scheduled to work over two weeks.
  • For employees that have variable hours, employers shall provide 14 times the average number of hours worked each day in the last six months.
  • For employees that have worked for less than six months, but more than 14 days, this calculation shall be made over the entire period the employee has worked at the employer’s business.
  • For employees with variable hours, but who have worked with the employer for 14 days or less, employers shall provide the employee with the same number of hours worked.

Once an eligible employee determines how many SPSL hours to use, the employer shall make SPSL available to use. Employees may make SPSL requests either orally or in writing. SPSL is provided to employees in addition to any other paid sick leave they receive pursuant to existing law and employers may not require an employee to use other available paid time off or vacation time before or in lieu of SPSL.

The rate of compensation for SPSL is the highest of the employee’s regular rate of pay during the last pay period, or the state or local applicable minimum wage, up to daily and aggregate total maximum payments.

Employers are required to display a poster regarding SPSL, which may be disseminated electronically. We have attached a copy of the updated poster.

Conclusion

If you have any questions about your obligations as an employer of health care providers, emergency responders, or if you have 500 or more employees anywhere in the United States, and have questions about how these new laws apply to your business, do not hesitate to any of the attorneys in our employment practice group.  We will continue to monitor changes in the law and provide updates that affect your obligations as an employer.