Employer Planning Is Key to Managing Coronavirus Disease

Q.   What should my company be doing to prepare for the spread of the coronavirus?

A.  With the number of coronavirus cases topping 90,000 worldwide, resulting in more than 3,000 deaths across 65 countries, it is only a matter of time before the disease has some impact on normal business operations. However, as the virus continues its march around the globe, there are certain actions companies can take today to mitigate potential disruptions and calm employee nerves.

Communication is key. Employees want concrete answers to questions about employer expectations in the event that the crisis reaches their door. If you haven’t done so already, it would be helpful to issue a policy with, at a minimum, some common sense advice about handwashing, coughing and sneezing etiquette, and sanitizing common areas. Employees should be told to leave work and stay home if they have respiratory symptoms or a fever and companies should communicate this directive to staffing agencies that supply the workplace with temporary or contract workers. Consider placing hand sanitizers in strategic locations and suggesting that employees avoid handshakes.

In addition, employers should ensure that their policies on sick leave are compliant with federal, state and local leave laws. Companies should review these policies with workers so that employees are aware of the consequences, if any, if they are unable to come to work due to their own illness or if they are needed to tend to a sick family member. Companies also need to make sure the appropriate personnel are aware of their obligations to maintain confidentiality under the Americans With Disabilities Act with regard to employees who are sick while working with public health officials to notify employees who may have been exposed to the virus.

There may come a time when the virus reduces the ability of even healthy employees to get to work if, for example, schools and public transportation are impacted. Employers should consider and communicate whether and which employees are permitted to work from home under such circumstances and ensure that employees have the tools they need to telecommute. Companies also should set expectations around such work-from-home arrangements and communicate whether they plan to pay workers who are not able to perform their jobs remotely. In that regard, employers need to keep in mind the rules regarding pay for exempt and non-exempt workers.  Many employees are relaxing their attendance policies temporarily in response to the crisis.

In terms of business continuity, employers will want to cross-train employees to perform critical job functions in the event that certain staff members fall ill. Companies with multiple facilities also will want to cross-train individuals to take over key business functions in the event that one location is impacted more severely than others. Employers also should have a plan in place to identify alternative sources of supply and services required to maintain business operations in the event of increased absenteeism, supply chain interruptions and shortages of raw materials.

Employers also should consider implementing rules around travel, both business and personal. Some companies already have replaced meetings with videoconferences and advised employees to avoid nonessential business travel to high risk areas. Make sure that employees know that they should notify a supervisor or human resources if they become sick while traveling. With spring break fast approaching, some employees may be planning trips domestically and abroad. Many companies are asking employees to disclose their travel plans and imposing a 14-day ban on entering the workplace after an employee has traveled to a high-risk region.  Employers may compel employees to disclose their personal travel plans but should take steps to maintain confidentiality of that information.  Moreover, employers will need to consider off-duty conduct laws in their states if they plan on taking any kind of adverse action based on an employee’s personal travel.

Preparation rather than panic should be your company motto. Thinking through these important issues and memorializing them in a written disease outbreak response plan will help companies protect their workplaces and ensure continuity of operations to the greatest extent possible.

For assistance in drafting a disease response plan, please contact us.

-Tracey E. Diamond

 

Pittsburgh Extends Paid Sick Leave to Employees, Differing from Philadelphia Law in Key Ways

Q.  My company has offices in Philadelphia and Pittsburgh. Is Pittsburgh’s new paid sick leave law the same as Philadelphia’s paid sick leave law?

A.  Effective March 15, 2020, Pittsburgh will be joining Philadelphia and several other jurisdictions in requiring employers to provide sick leave to its employees. While these laws share the same intent, there are several notable differences in terms of compliance. For companies like yours that operate in both cities, the distinctions between the two laws may necessitate separate policies for employees based on their location.

For example, Pittsburgh’s “Paid Sick Days Act” (PSDA) requires employers to provide each “covered employee” with at least one hour of paid sick time for every 35 hours worked within the City’s geographic boundaries. By contrast, Philadelphia’s “Promoting Healthy Families and Workplaces Act” (PHFW) allows for employees to earn sick leave at the rate of one hour for every 40 hours worked.

Using identical language, both the PHFW and the PSDA provide sick time for “an employee’s mental or physical illness, injury or health condition; an employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; an employee’s need for preventive medical care,” or to provide care for a family member with those same needs.

However, the two laws differ in other ways. Specifically, the PHFW provides additional coverage for absences taken by victims of domestic abuse, sexual assault or stalking, provided the leave is used for medical care, counseling, relocation, or to receive legal services following incidents of domestic or sexual violence. By contrast, the PSDA allows employees to use sick time in the event of a closure of the employee’s place of business by order of a public health official, or to provide for childcare in the event of school closings.

Under either law, the number of employees employed by your company will determine which provisions are applicable. The PHFW requires Philadelphia employers with 10 or more employees to provide paid sick leave, while employers with fewer than 10 employees may provide unpaid sick leave. Under the Pittsburgh law, employers with 15 or more employees must provide paid sick leave. Note that the PSDA allows employers with fewer than 15 employees to provide unpaid sick leave, but only for the first year. Beginning on March 15, 2021, even employers with fewer than 15 employees must provide paid sick leave.  However, the PSDA’s 15-employee threshold affects the accrual cap for paid sick leave. Employers with 15 or more employees must provide up to 40 hours of paid sick leave per calendar year. while employers below the threshold may cap the amount of accrued sick time at 24 hours per year.

The Acts also differ regarding who is considered to be covered employee. In Philadelphia, employees must work within the geographical boundaries of the city for at least 40 hours in a year to be eligible for sick leave. In Pittsburgh, however, employees become eligible for paid sick leave after working 35 hours in the city’s geographic boundaries. Notably, under the PSDA, employers with employees working outside the boundaries of Pittsburgh must count those employees to determine the number of employees. Thus, a Pittsburgh employer with 9 employees working in Pittsburgh and 6 employees working in Philadelphia would meet the 15-employee threshold under the PSDA. While the PHFW does not count employees working outside Philadelphia with regard to its 10-employee threshold, any “chain establishment,” defined as an entity operating “under the same trade name” at 15 or more locations, will be required to provide paid sick leave, regardless of the number of employees working in Philadelphia.

Both Acts exclude independent contractors, seasonal workers and public employees. The PHFW also excludes adjunct professors, employees hired for a term of less than six months, interns, pool employees and employees covered by a collective bargaining agreement. The Pittsburgh law excludes only members of construction unions working under a collective bargaining agreement.

Both laws allow employees to carry over earned, unused sick time to the following year, up to the annual accrual cap. However, to avoid the administrative headaches of calculating unused sick time each year, employers may “front load” employee sick time by providing the required annual allotment at the beginning of each year. Employees are not entitled to a payout for accrued, unused sick time after leaving their employment under either Act.

Conclusion

The distinctions between the Philadelphia and Pittsburgh laws provide just one example of the difficulties faced by national companies in creating one paid sick leave policy that will be compliant across jurisdictions.  Employers seeking one universal policy will have to comply with the most generous of the relevant laws.  To the extent that employers choose to have different sick leave policies in place for each jurisdiction, these companies must keep track of hours worked by employees who regularly work in more than one jurisdiction to determine whether one or more paid sick leave laws apply.

Tracey E. Diamond and Rogers Stevens

Westchester County Paid Sick Leave Law Effective April 10, 2019

Q: I am an employer in Westchester County.  What do I need to know about the new paid sick leave law?  If I have employees in both Westchester County and New York City, can I have one paid sick leave policy that covers everyone?

A: Westchester County recently enacted its Earned Sick Leave Law (“ESLL”), which goes into effect on April 10, 2019.  While the law is similar in many aspects to New York City’s Earned Safe and Sick Time Act (“ESSTA”), there are some important differences.  Employers who want one policy to cover employees in both locations (referred to below as a “dual policy”) can opt to offer the more generous benefit.  Alternatively, employers can create a policy with carve-outs that are applicable to subsets of employees (referred to below as a “carve-out policy”).  As explained below, the key differences between the laws are whether the law covers safe time as a permissible use of sick leave, and the definition of family member.

All Westchester County employers are subject to the ESLL – like the ESSTA, employers with five or more employees must provide paid sick time, while employers with fewer than five employees may but are not required to make the sick time paid. The ESLL covers any person employed in Westchester County for more than 80 hours in a calendar year.

Under both laws, employees earn one hour of sick leave for every 30 hours worked, up to a cap of 40 hours per year. Accrued/unused leave must be carried over to the following year.

Both laws require that employees begin earning sick leave at the beginning of employment, and allow employers to impose a 120-day waiting period after commencement of employment before sick leave can be used.

Both laws provide for the following uses of sick leave: (1) care or treatment of an employee’s mental or physical illness, injury or health condition, or preventative medical care; (2) care or treatment of an employee’s family member’s mental or physical illness, injury or health condition, or preventative medical care; and (3) closure of an employee’s place of business due to a public health emergency or an employee’s need to care for a child whose school or childcare provider has been closed due to a public health emergency. In addition, the ESSTA allows sick leave to be used for “safe time,” which is time associated with when an employee or an employee’s family member has been the victim of a family offense matter (crimes such as harassment, stalking, or assault between members of the same household), sexual offense (crimes such as sexual abuse or rape), stalking, or human trafficking.  The ESLL does not require sick leave to be used for these purposes.  Thus, a dual policy should include the use of sick leave for safe time, while a carve-out policy should only apply safe time to NYC employees

Both laws define “family member” broadly, to include an employee’s child (including the child of an employee’s spouse or domestic partner), spouse, domestic partner, parent (including the parent of an employee’s spouse or domestic partner), sibling, grandparent, grandchild, and any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship. Additionally, the ESLL includes the following as family members: persons formerly married to or in a domestic partnership with one another regardless of whether they still reside in the same household, persons who have a child in common (regardless of whether they have been married, domestic partners, or have lived together at any time), and persons not related by blood or affinity who are or have been in an intimate relationship with the employee, regardless of whether they have lived together at any time.  The ESLL does not define “intimate relationship,” though future guidance could address the issue.  A dual policy should consider “family member” to include all of the above categories, while a carve-out policy should specify that the additional ESLL definitions only apply to Westchester employees.

Both laws allow employers to require reasonable documentation of the use of sick time if an employee is absent for more than three consecutive work days. The ESSTA also allows such documentation for absences of more than three consecutive work days for safe time.

Unlike the ESSTA, the ESLL allows a private right of action. Employees can file complaints with the Department of Weights and Measures – Consumer Protection (the Westchester agency that will enforce the law), or bring a civil lawsuit.  Employees  may recover either three times the wages that should have been paid for each instance of undercompensated sick leave taken, or $250, whichever is greater.  Employees can also recover $500 for each instance where the employees have been unlawfully denied requested sick time.  Recovery of back pay (if applicable) and reasonable attorneys’ fees also is available.

Both laws have notice requirements. The ESSTA requires that a written notice of employee rights be provided to employees upon commencement of employment.  A form notice is available at http://www.nyc.gov.  The ESLL requires that employers provide employees with a copy of the law and a written notice of rights by June 28, 2019, or at the commencement of employment, whichever is later.  Both laws also have posting and three-year recordkeeping requirements.

To prepare for the new law, Westchester County employers should review their current sick leave policies and determine whether revisions are needed. If employers do not have sick leave policies, they should prepare to implement compliant policies by April 2019.

Jessica Rothenberg

New Jersey Becomes Tenth State to Enact Paid Sick Leave

Q.  Do I need to provide paid sick leave to employees in New Jersey?

A.  Last week, New Jersey Governor Phil Murphy signed into law the New Jersey Paid Sick Leave Act, mandating paid sick leave for full and part-time workers in the Garden State. Similar to the laws in other states, the New Jersey law provides for employees to earn one hour of paid sick leave for every 30 hours worked. Employees may use up to 40 hours of earned sick leave in a benefit year.  They may also carry over up to 40 hours of earned sick leave from one year to the next.  Earned sick leave is not paid upon termination, unless a company policy or collective bargaining agreement provides otherwise.

Employees begin to accrue sick leave on their hire date, and are eligible to use them beginning on the 120th calendar day of employment. The employee may subsequently use earned sick leave as soon as it is accrued.  Employees must be paid for earned sick leave at the same rate of pay with the same benefits as the employee normally earns, so long as the pay rate is at least minimum wage.

Earned sick leave may be used for the employee’s own health condition and time off for preventative medical care, and to take care of or coordinate preventative medical care for family members. The term “family member” is defined broadly to include the employee’s child, grandchild, sibling, spouse, domestic or civil union partner, parent, grandparent, in-law, grandparent or sibling of the employee’s spouse, domestic or civil union partner, and “any other individual related by blood to the employee or whose close association with the employee is equivalent of a family relationship.”

Employees also may use earned sick leave for absences as a result of the employee or a family member being the victim of domestic or sexual violence.  In addition, employers must allow employees to use earned sick leave for school closures and to attend school conferences.  Employees may not be subject to discipline for using earned sick leave.

If the need to use earned sick leave is foreseeable, an employer may require up to seven days of advance notice before the leave is taken. Employers must make a reasonable effort to schedule the use of earned sick leave in a manner that does not unduly disrupt the company’s operations.  If the employee uses earned sick leave for three or more consecutive days, the employer may require a doctor’s note supporting the need for leave.

Companies may not require employees to find replacements as a condition of using earned sick leave. While the employer and the employee may mutually agree to allow the employee to work additional hours or shifts to make up the missed time, employees are not required to do so.

What Employers Should Do

The Paid Sick Leave Act goes into effect on November 2, 2018, and preempts all existing city and county sick leave laws in the state. To get ready for the new Act, employers should analyze their current paid time off policies or draft a new earned sick leave policy to ensure that time off is accrued and may be used in the manner provided by the Act.  New Jersey employers also should review their record-keeping policies to make sure that they retain records documenting hours worked and earned sick leave taken by employees for at least five years.

Tracey E. Diamond