Tag: paid sick leave

Chicago’s New Paid Leave and Paid Sick Leave Ordinance Delayed Six Months

Just over a month after passing the Chicago Paid Leave and Paid Sick Leave Ordinance (the Ordinance), which brought sweeping new paid leave and paid sick leave requirements to employers with Chicago employees, the city has amended the Ordinance to delay its effective date and limit the number of covered employees.

As amended, the Ordinance will not take effect until July 1, 2024, rather than December 31, 2023. In addition, the Ordinance no longer covers employees who have worked merely two hours within the city in any two-week period. Instead, the Ordinance now reverts to the definition of “Covered Employee” found in the current Chicago and Cook County paid sick leave ordinances: an employee who has worked at least 80 hours in any 120-day period within the city’s geographic limits.

The amended Ordinance also potentially gives employers an opportunity to remedy Ordinance violations before being subject to claims for non-compliance. Specifically, employees will be prohibited from filing claims against their employers until the earlier of 16 days or the next regular payday after the employer’s alleged violation. While described by some as a “cure” period, there is no requirement that an employee actually notify their employer of an alleged violation before bringing a claim. For employers concerned about fielding claims for inadvertent violations, this change may be small comfort.

With the effective date of the Ordinance delayed until July 1, 2024, Chicago employers now have six more months to prepare for its new requirements. In the meantime, the city’s current paid sick leave ordinance remains in effect, so for now that benefit is business as usual for Chicago employers.

© 2023 Much Shelist, P.C.
For more news on Chicago’s Paid Sick Leave Ordinance, visit the NLR Labor & Employment section.

Federal Court Strikes Down Portions of Department of Labor’s Final Rule on COVID-19 Leave, Expands Coverage

On August 3, 2020, the United States District Court for the Southern District of New York struck down portions of the DOL’s Final Rule regarding who qualifies for COVID-19 emergency paid sick leave under the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), collectively referred to as the Families First Coronavirus Response Act (“FFCRA”).

Of particular importance to retail employers, the Court invalidated two provisions of the DOL’s Final Rule pertaining to: (1) conditioning leave on the availability of work and (2) the need to obtain employer consent prior to taking leave on an intermittent basis.

Neither the EPSLA nor the EFMLEA contains an express “work availability” requirement. The EPSLA grants paid leave to employees who are “unable to work (or telework) due to a need for leave because” of any of six COVID-19-related criteria. FFCRA § 5102(a). The EFMLEA similarly applies to employees “unable to work (or telework) due to a need for leave to care for . . . [a child] due to a public health emergency.” FFCRA § 101(a)(2)(A).  In its Final Rule, the DOL concluded that these provisions do not reach employees whose employers “do not have work” for them, reasoning a work-availability requirement is justified “because the employee would be unable to work even if he or she” did not have a qualifying condition set forth in the statute.

In rejecting the DOL’s interpretation, the Court stated that “the agency’s barebones explanation for the work-availability requirement is patently deficient,” given that the DOL’s interpretation “considerably narrow[s] the statute’s potential scope.”  Under the Court’s interpretation, employees are entitled to protected leave under either the EPSLA or EFMLEA if they satisfy the express statutory conditions, regardless of whether they are scheduled to work during the requested leave period.

The Court also rejected part of the DOL’s interpretation that employees are not permitted to take the protected leave on an intermittent basis unless they obtain their employer’s consent.  As an initial matter, the Court upheld the DOL’s interpretation that employees cannot take intermittent leave in certain situations in which there is a higher risk that the employee will spread COVID-19 to other employees (i.e., when the employees: are subject to government quarantine or isolation order related to COVID-19; have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19; are experiencing symptoms of COVID-19 and are taking leave to obtain a medical diagnosis; are taking care of an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19).

In those circumstances, the Court agreed that a restriction on intermittent leave “advances Congress’s public-health objectives by preventing employees who may be infected or contagious from returning intermittently to a worksite where they could transmit the virus.”  Therefore, in those situations, employees are only permitted to take the protected leave in a block of time (i.e., a certain number of days/weeks), not on an intermittent basis.  As a result, the Court upheld the DOL’s restriction on intermittent leave “insofar as it bans intermittent leave based on qualifying conditions that implicate an employee’s risk of viral transmission.”

The Court, however, rejected the requirement that employees obtain their employer’s consent before taking intermittent leave in other circumstances (i.e., when an employee takes leave solely to care for the employee’s son or daughter whose school or place of care is closed).  In doing so, the Court ruled that the DOL failed to provide a coherent justification for requiring the employer’s consent, particularly in situations in which the risk of viral transmission is low.  The Court’s opinion brings the EPSLA and EFMLEA in line with the existing FMLA, which does not require employer consent.

It is unclear if the DOL will challenge the Court’s decision or revise its Final Rule to bring it in compliance with the Court’s opinion.  Regardless, the Court’s decision takes effect immediately and retail employers should be mindful of this ruling and revisit their COVID-19 leave policies.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.

Emergency Paid Leave — Making it Work

The Families First Corona Virus Response Act creates a new entitlement – for workers – to receive paid sick leave and paid FMLA between April 1 and December 31, 2020.[i]  If the virus is contained in the next six to eight weeks as hoped, we can expect the economic impact on workers to be most severe in April, May and June 2020.  The Families First Act is intended to help as many individuals as possible to avoid financial exigency, job loss and loss of health insurance during this critical window. Emergency paid leave is funded at 100 percent by a federal tax offset and rebate.

This is not an employer v. employee situation.  Employers do not want to lay off their employees.  Layoffs create instability and have a significant economic domino effect.  Employees lose their income and benefits and, possibly, accept other employment in the short term out of necessity.  Employers may struggle to regroup and regain their markets if their trained workers are unavailable.  The ramifications of sudden mass unemployment are passed along through landlords and mortgage lenders, unpaid service providers and the emergency rooms that replace health insurance.

As clients adapt to the new normal, lawyers need to do the same.  Risk mitigation in the current environment requires thoughtful legal analysis supported by the capacity for change.  Two recent questions under the Families First Act illustrate the paradigm shift –

Emergency Paid Sick Leave – is a state shelter at home order a “State … quarantine or isolation order related to COVID-19”?

The Families First Act created temporary emergency paid sick leave accessible under six circumstances.[ii]  The first is when the employee is “subject to a Federal, State or local quarantine or isolation order related to COVID-19.”[iii]  Last month, as states rapidly issued shelter at home orders, employers and employees wanted to know whether a shelter at home order was a quarantine or isolation order entitling employees to paid sick leave.

The Wage and Hour Division published sub-regulatory guidance on March 23, 2020, (since updated several times) called Families First Coronavirus Response Act: Questions and Answers.  The WHD’s guidance did not initially answer the quarantine order question.  Questions 23-27 explained that emergency paid sick leave is not available when an employer has “closed” the employee’s worksite or furloughed the employee. [iv] The employee’s worksite is “closed” when the employer “sends the employee home” and “stops paying” the employee because the employer does not have work for the employee to do.  Under these circumstances, the employee is not entitled to take emergency paid sick leave.

A shelter at home order requires all individuals present within the state or local government’s boundaries to “stay at home or in their place of residence” with exceptions described in the order.[v] 

According to the common wisdom, although the Families First Act made no reference to it, the Centers for Disease Control and Prevention’s definition of quarantine applied.  The CDC’s definition of quarantine — separating and restricting the movement of people who were exposed to a contagious disease to see if they become sick — is discussed on the CDC’s webpage regarding ports of entry and land border crossings.[vi]  Using the CDC’s definition precludes the use of emergency paid sick leave for employees unable to work due to a state or local shelter at home order.

The legal analysis did not support the more restrictive reading.  The Emergency Paid Sick Leave Act does not make any reference to the CDC’s definition.  The related Congressional Record does not mention the CDC’s definition.  The Congressional Record for the compressed time during which Congress debated and then passed the Families First Act is explicit in its bipartisan emphasis on using taxpayer funded emergency paid leave to mitigate hardship for employees and employers.

The rules of statutory construction would not allow a court or administrative agency to read the CDC’s definition into the legislation.  The U.S. Supreme Court recently reiterated that courts are to enforce plain and unambiguous statutory language according to its terms.  In Intel Corporation Investment Policy Committee v. Sulyma, the Court relied on the dictionary definition of the word “actual” (“existing in fact or reality”) to confirm the meaning of the ERISA notice requirement of “actual knowledge.”[vii]

The Merriam-Webster Dictionary defines “quarantine” as “a restraint upon the activities or communication of persons or the transport of goods designed to prevent the spread of disease or pests.” [viii]  Shelter at home orders clearly qualify.

On April 3, 2020, the WHD confirmed that a state or local shelter at home order is a quarantine order for the purposes of the Emergency Paid Sick Leave Act.  With this context in mind, rather than looking for ways to avoid it, affected employers and employees should be encouraged to use an expansive view of Emergency Paid Sick Leave.

Emergency Family and Medical Leave Expansion Act – is it reasonable for the WHD to limit or prevent employees who recently used FMLA leave from the full use of Emergency Family and Medical Leave?

In contrast to the WHD’s initial silence on shelter at home orders, the guidelines clearly advised that FMLA time is limited to 12 weeks regardless of the entitlement.  The WHD’s guidance on this question does not seem reasonable when considered in light of the intent of the Families First Act and the likely consequences of applying it as advised.

An argument could be made that the WHD is creating, rather than interpreting, legislation by adding a limitation to the Families First Act that Congress did not intend.

Section 2612(a)(1) of the Family and Medical Leave Act entitles eligible employees to a total of twelve workweeks of unpaid leave during any 12-month period when the employee experiences “one or more” of five situations.[ix]  The same definitions of eligible employee and covered employer apply for each category of unpaid leave.

The Emergency Family and Medical Leave Expansion Act adds a fifth entitlement.  Section (F) creates a temporary nine month right to federally-financed paid childcare leave.[x]  A completely different eligible employee is entitled to a total of 12 workweeks from a completely different covered employer between April 1 and December 31, 2020, for a completely different reason, “because of a qualifying need related to a public health emergency in accordance with section 2620 [i.e., loss of access to child care or school].”

Although it is a new entitlement that is temporary, limited in time and applicable to a different set of employees and employers, the WHD restricted access to Emergency Family and Medical Leave.  Employees cannot take more than twelve total weeks of any FMLA leave during the employer’s 12-month unpaid leave administrative period.[xi]

This means employees who took unpaid FMLA leave in the first quarter of 2020 or earlier in their employer’s administrative period are partially or fully excluded from taking Emergency Family and Medical Leave.  These employees, by definition, are now at a much higher risk of job loss through no fault of their own.  Sudden job loss in the current environment is more likely to cause these families to lose their health insurance because they may experience longer periods of unemployment.  Loss of health insurance and the inability to pay medical bills is the most significant contributor to financial hardship and bankruptcy with all of the related economic reverberations.

It could be argued that the WHD has legislated an unintended restriction into the EFML Expansion Act.  Consistent with its decision in King v. Burwell, the U.S. Supreme Court recently limited Chevron deference in similar cases where agency guidance created prescriptive limits that do not exist in the legislation.  In Smith v. Berryhill, the Court noted, “[a]lthough agency determinations within the scope of delegated authority are entitled to deference, it is fundamental ‘that an agency may not bootstrap itself into an area in which it has no jurisdiction.’”[xii]

The Emergency Family and Medical Leave Expansion Act entitlement is unique.  It applies to small employers with fewer than 500 employees who will receive tax credits for the leave payments.  The twelve-month availability period in the original FMLA is replaced by the quick start and hard stop nine-month Emergency Family and Medical Leave Expansion Act period of April 1 to December 31, 2020, after which the paid child care leave entitlement (hopefully) ends.  The standard FMLA eligibility requirements are replaced with the 30-day employment eligibility period.  The reason for the leave, to care for children because schools and daycare centers are closed, is situationally unique.

Most importantly, the EFML Expansion Act is a paid leave.  It is a significant, and significantly enhanced, entitlement for the people it is intended to help.  The legislative history clearly addresses the limited emergency parameters of this legislation and emphasizes that it is intended to be applied to workers as inclusively as possible.[xiii] Wages paid for EFML are reimbursed by the federal government at 100 percent.

Employees who used FMLA time in Q1 2020 (or within their FMLA administrative year) are, arguably, most in need of Emergency Family and Medical Leave.  They may suffer the most extreme consequences without it.

Employees who used FMLA time in 1Q 2020/admin year gave birth or welcomed an adopted or foster child into their home, received treatment for their own serious health condition or cared for a family member.  They are much more likely to need continuation of their employer-sponsored health insurance at this time.  If they are now home-schooling their children or unable to access daycare, they have no resources.  Loss of income and health insurance through a layoff or furlough would be a disaster that will affect the family well into the future.

It is difficult to understand how the WHD would not consider the effect of the guidance on overburdened hospitals, clinics and emergency rooms.  What possible rationale could support an interpretation of the Emergency Family and Medical Leave Expansion Act that will force employers to deny paid Emergency Family and Medical Leave to the employees who may need it the most and push families into the ER for their health care because they have lost their health insurance?[xiv]

There is a workaround.  Section 2653 of the FMLA, titled “Encouragement of more generous leave policies”, says “[n]othing in this Act or any amendment made by this Act shall be construed to discourage employers from adopting or retaining leave policies more generous than any policies that comply with the requirements under this Act or any amendment made by this Act.”[xv]

In response to specific Congressional encouragement, employers covered under the Emergency Family and Medical Leave Expansion Act could reset their FMLA administrative period to April 1, 2020.  The reset would allow all eligible employees to receive up to 12 weeks of paid EFML between April 1 and December 31, 2020, when they may need it most.

Although the FMLA regulations require 60 day notice of an administrative period date change, they also re-emphasize that the employer should take every precaution to avoid reducing the employee’s FMLA entitlement and do everything possible to preserve the greatest benefit to the employee.[xvi]  As long as the employer is enhancing the FMLA entitlement for employees, the 60 day notice period should be waived.

To contribute at a higher level, lawyers should guard against assuming a reflexive defensive crouch and help employers and employees use the emergency legislation to mitigate economic distress.

[i] FAMILIES FIRST CORONAVIRUS RESPONSE ACT, PL 116-127, March 18, 2020, 134 Stat 178

[ii] SEC. 5102. PAID SICK TIME REQUIREMENT.

(a) IN GENERAL.—An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.

(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter *196 has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

FAMILIES FIRST CORONAVIRUS RESPONSE ACT, PL 116-127, March 18, 2020, 134 Stat 178

[iii] Id

[iv] Questions 23-27, https://www.dol.gov/agencies/whd/pandemic/ffcra-questions (accessed 04/14/2020)

[v] State of Wisconsin Department of Health Services Emergency Order #12 Safer at Home Order https://evers.wi.gov/Documents/COVID19/EMO12-SaferAtHome.pdf

NOW THEREFORE, under the authority of Wis. Stat. § 252.02(3) and (6) and all powers vested in me through Executive Order #72, and at the direction of Governor Tony Evers, I, Andrea Palm, Secretary-designee of the Wisconsin Department of Health Services, order the following:

1. Stay at home or place of residence. All individuals present within the State of Wisconsin are ordered to stay at home or at their place of residence, with exceptions outlined below.

[vi] See, https://www.cdc.gov/quarantine/. 

[vii] Intel Corp. Inv. Policy Comm. v. Sulyma, 140 S. Ct. 768 (2020)

[viii] https://www.merriam-webster.com/dictionary/quarantine

[ix] (a) In general

(1) Entitlement to leave

Subject to section 2613 of this title and subsection (d)(3), an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.

(B) Because of the placement of a son or daughter with the employee for adoption or foster care.

(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.

29 U.S.C.A. § 2612 (West)

[x] (F) During the period beginning on the date the Emergency Family and Medical Leave Expansion Act takes effect, and ending on December 31, 2020, because of a qualifying need related to a public health emergency in accordance with section 2620 of this title.

29 U.S.C.A. § 2612 (West)

[xi] Questions 44 and 45, https://www.dol.gov/agencies/whd/pandemic/ffcra-questions (accessed 04/14/2020)

[xii] Rather, “[a]lthough agency determinations within the scope of delegated authority are entitled to deference, it is fundamental ‘that an agency may not bootstrap itself into an area in which it has no jurisdiction.’”

Smith v. Berryhill, 139 S. Ct. 1765, 1778, 204 L. Ed. 2d 62 (2019) quoting Adams Fruit Co. v. Barrett, 494 U.S. 638, 649–650, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990).

[xiii] https://www.congress.gov/116/crec/2020/03/18/CREC-2020-03-18.pdf

[xiv] The issue of aggregating FMLA and EFML time is different than the question, not yet directly answered, of whether regular FMLA and EFML Expansion Act time runs concurrently after April 1, 2020.  The WHD did clarify that the EFML entitlement is limited to a total of 12 weeks.  In a temporary rule published April 10, 2020, the WHD explained that an eligible employee is entitled to no more than 12 weeks of EFML between April 1 and December 31, 2020, even if the employer’s FMLA administrative period runs from July 1 to June 30.  See, 29 CFR 826.70.

[xv] 29 U.S.C.A. § 2653 (West)

[xvi] 29 C.F.R. § 825.200(d)(1) says:

(d)(1) Employers will be allowed to choose any one of the alternatives in paragraph (b) of this section for the leave entitlements described in paragraph (a) of this section provided the alternative chosen is applied consistently and uniformly to all employees. An employer wishing to change to another alternative is required to give at least 60 days notice to all employees, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. Under no circumstances may a new method be implemented in order to avoid the Act’s leave requirements.

Lewis Law Office, LLC copyright 2020. All rights reserved.

For more on the Emergency Paid Sick Leave law, see the National Law Review Coronavirus News section.

DOL Publishes Additional FAQs, Making Clear That Employees on Furlough or Layoff Are Not Eligible for FFCRA Paid Sick Leave or Expanded FMLA

The Department of Labor issued additional FAQs on Thursday March 26. They now offer 37 FAQs on how the paid sick leave and expanded FMLA leave under the Families First Coronavirus Response Act will apply. The leave obligations begin April 1, 2020.

As more and more employers are required to shutdown due to state orders or layoff employees due to business concerns, a frequently asked question is whether the employees impacted by these closures and layoffs will still be eligible for paid sick leave and paid FMLA leave under the FFCRA. According to the FAQs issued by the DOL, they will not:

24. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility.

***

26. If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave?

No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

In addition to several FAQs on the impact of layoffs and furloughs, the FAQs also address what documentation employers should request, whether the paid sick leave and paid FMLA can be used intermittently and whether other employer-offered paid leave can be used concurrently with that required by FFCRA.

Jackson Lewis P.C. © 2020

Economic Relief for Businesses Impacted by Coronavirus (COVID-19)

In response to the Coronavirus (COVID-19) outbreak, the federal government and many states have developed paths towards economic relief for small businesses. Below is a summary of such programs at the federal level and in New York, Connecticut, and New Jersey.

I. Federal – U.S. Small Business Administration (the “SBA”)

In response to the Coronavirus (COVID-19) outbreak, the SBA has made Economic Injury Disaster Loans (“EID Loans”) available for qualifying businesses that have suffered economic injury as a result of the epidemic.  Below is a summary of the SBA’s eligibility requirements, application procedures, and general loan terms for the EID Loans.

SBA EID Loan Eligibility

In order to be eligible for an EID Loan a business must first be located in a geographic area that is a declared disaster area recognized by the SBA.  Recognized Declared Disaster Areas are listed on the SBA’s website. As of March 17, 2020, the following areas are approved for disaster loan assistance due to the Coronavirus (COVID-19): California, Connecticut, Idaho,  Maine, Massachusetts, New Hampshire, New York, Oregon, Rhode Island, and Washington. The entire State of Connecticut was declared a federal state of disaster due to the Coronavirus outbreak effective as of January 31, 2020. Many other states are currently in the process of submitting requests to the SBA for an economic injury disaster declaration as a result of the virus and should be eligible for EID loans in the coming days and weeks.

The SBA further requires that a business qualify as a small business to be eligible for an EID Loan. The definition of a “small business” varies by industry but generally is based on the number of employees a business has or the amount of revenue a business generates annually. The SBA has an interactive website to help companies determine whether or not they qualify as a “small business” under the SBA’s regulations. Generally, a full-service restaurant qualifies as a “small business” so long as it has less than $8,000,000 in annual revenue. Private and nonprofit organizations may also qualify for EID Loans.

Finally, a business must demonstrate that it has suffered “substantial economic injury” as a direct result of the disaster, in this case the Coronavirus outbreak, in order to qualify for an EID Loan. For the SBA’s purposes a “substantial economic injury” generally means a decrease in income from operations or working capital with the result that the business is unable to meet its obligations and pay ordinary and necessary operating expenses in the normal course of business.

Ultimately, an applicant’s eligibility for an EID Loan will be determined by the SBA based on the applicant’s type of business, available financial resources, and its demonstration of substantial economic injury.

EID Loan Application Process

An EID Loan, and all other SBA disaster assistance loans, can be applied for by an (1) online application or (2) by a paper form, using SBA Form 5. The SBA has suggested that online applications will be processed more quickly than applications submitted on a physical form.

In addition to the EID Loan application form, an applicant must submit the following documentation to the SBA –

  1. Tax Information Authorization (IRS Form 4506T), completed and signed by each principal owning 20% or more of applicant business, general partner, general manager or owner who has 50% ownership interest in affiliate business. (Affiliates include, but are not limited to business parents, subsidiaries, and/or other businesses with common ownership or management with applicant business.)
  2. Complete copies, including all schedules, of the most recent Federal income tax returns for the applicant business; if unavailable a written explanation must be submitted in lieu
  3. Personal Financial Statement (SBA Form 413) completed, signed, and dated by the applicant and each principal, general partner or managing member.
  4. Schedule of Liabilities listing all fixed debts (SBA Form 2202)

Following the submission of a complete loan application, the SBA will conduct a credit check of the applicant and verify the business’ financial information. The SBA may request additional financial information including tax returns for principals, general partners and managing members of the business, as well as a current profit-and-loss statements, and balance sheets for the business. The SBA’s stated goal is to review an application and decide on a business’ eligibility for the EID loan program within 2-3 weeks. Given the anticipated high volume of applications to this program as a result of the Coronavirus, it is likely that the application and review process will take longer. Once an application is fully accepted and approved, the applicant will need to sign the applicable EID Loan documents and return them to the SBA. The applicant can expect to receive a disbursement of the EID Loan funds within one week from the SBA’s receipt of the fully executed loan documents.

The EID loan amount awarded by the SBA will be based off an applicant’s actual economic injury and the business’ financial needs, as determined by the SBA. The SBA will factor in the availability of other potential sources of financial contribution and business interruption insurance when determining an EID loan amount to be awarded to a small business.

EID Loan Use and General Terms

The funds from an EID loan may be used by the small business to pay fixed debts, payroll, accounts payable and other bills that can’t be paid because of the disaster’s impact. The terms of an EID Loan shall be determined by the SBA on a case-by-case basis, based upon each applicant’s needs and ability to repay. Generally, the maximum amount of an EID loan for the Coronavirus disaster is $2 million with an interest rate of 3.75% for small businesses or 2.75% for non-profits. The maximum repayment term of an EID loan is 30 years. There are no pre-payment penalties imposed by the SBA on an EID loan.

Alternatives to EID Loans

Small businesses that do not qualify for EID loans or have alternative needs may still be eligible for financial assistance from one of the SBA’s alternative loan programs.

The SBA has an 7(a) Loan Guarantee Program involves loans for small businesses in an amount up to $5,000,000 made by private lenders that are guaranteed by the SBA (“SBA 7(a) Loan”). An SBA 7(a) Loan is made directly by a private lender, who also handles the application and loan process, but is subject to the SBA’s terms and guidelines. To encourage private lenders to make these loans, the SBA guarantees a certain percentage of the SBA 7(a) Loan amount.  Small businesses looking for an acceptable lender for a SBA 7(a) Loan can use the SBA’s lender matching tool or contact their local SBA office for recommendations. The local Connecticut SBA office can be reached at 860-240-4700. The general timeline for the approval of an SBA 7(a) Loan application is 5 to 10 business days.

In order for a business to qualify for a SBA 7(a) Loan, it must qualify as a “small business” under the SBA’s regulations, operate for profit, be engaged in, or propose to do business in, the U.S., have reasonable owner equity and resources to invest in business, and be for a sound business purposes. The acceptable use of the 7(a) Loan funds is generally less restrictive than that of the EID loans and permissible uses include use for working capital, expansion or renovations, new construction, the purchase of land or buildings, the purchase of equipment or fixtures, lease-hold improvements, the refinancing of existing debt for compelling reasons,  seasonal line of credit, inventory, or starting a business. The proceeds from an SBA 7(a) Loan may not be used for the reimbursement of an owner for previous personal investments toward the business, the repayment of any delinquent withholding taxes, or anything not deemed a “sound business purpose” as determined by the SBA. Interest rates for SBA 7(a) Loans are determined by the private lender and generally based off the prime rate or LIBOR rate at the time of the loan but are subject to interest rate caps set by the SBA.

For businesses that need loan funds in a shorter period of time, the SBA offers a SBAExpress loan program which provides term loans and line of credits in amounts up to $350,000. The approval process for an SBAExpress loan is generally completed within 36 hours of receipt of an application.  A SBAExpress loan must also be obtained through a private lender and may be used for the same general purposes as an SBA 7(a) Loan.

II. New Federal Legislation

Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act

On March 18, the United States Senate approved a relief package to provide sick leave, unemployment benefits, free coronavirus testing, and food and medical aid to people impacted by the pandemic. The legislation was passed by the House on March 14, and was signed by President Trump on the evening of March 18. The legislation contains provisions that require immediate review and action for employers with fewer than 500 employees.

Both the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act will take effect 15 days after enactment, i.e. April 2, 2020. These provisions expire on December 31, 2020.

Covered employers (i.e., private employers with fewer than 500 employees) will be provided payroll tax credits to cover the wages and health care contributions paid to employees under the sick leave and family medical leave programs, up to the specified caps.

III. New York

New York State is currently assessing options to mitigate hardships to NYS businesses. As of March 19, 2020, the following orders and programs have been established in New York State in response to the COVID-19 outbreak:

Work From Home

On March 18, Governor Cuomo announced he will issue an executive order directing non-essential businesses to implement work-from-home policies effective Friday, March 20, to help reduce density as a social responsibility to protect their workforce. He also announced that businesses that rely on in-office personnel must decrease their in-office workforce by 50%. Exceptions will be made for essential service industries, including shipping, warehousing, grocery and food production, pharmacies, healthcare providers, utilities, media, banks and related financial institutions and other businesses that are essential to the supply chain.

Paid Sick Leave

On March 18, Governor Cuomo signed legislation to provide the following:

  • Employers with 10 or fewer employees and a net income less than $1 million will provide job protection for the duration of the quarantine order and guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine including wage replacement for their salaries up to $150,000.
  • Employers with 11-99 employees and employers with 10 or fewer employees and a net income greater than $1 million will provide at least 5 days of paid sick leave, job protection for the duration of the quarantine order, and guarantee their workers access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine including wage replacement for their salaries up to $150,000.
  • Employers with 100 or more employees, as well as all public employers (regardless of number of employees), will provide at least 14 days of paid sick leave and guarantee job protection for the duration of the quarantine order.

Shared Work Program

The New York State Department of Labor (NYSDOL) Shared Work Program allows businesses to manage business cycles and seasonal adjustments while retaining trained staff and avoiding layoffs. Employees can receive partial Unemployment Insurance benefits while working reduced hours. Full-time, part-time and seasonal employees are eligible.

IV. Connecticut

Connecticut has provided a number of resources, in addition to the SBA, for Connecticut businesses including the following:

DECD’s COVID-19 Business Emergency Response Unit

The Connecticut Department of Economic and Community Development has created a COVID-19 Business Emergency Response Unit dedicated to assisting businesses navigate resources and develop new resources. A dedicated phone line is has been set up at 860-500-2333 to provide assistance to Connecticut’s small businesses for this purpose.

Unemployment Assistance

Workers directly impacted by the coronavirus pandemic no longer must be actively searching for work to qualify for unemployment assistance. And employers who are furloughing workers can use the Department of Labor’s shared work program, which allows businesses to reduce working hours and have those wages supplemented with unemployment insurance. Further information can be found here.

Tax Filing Extensions

The Department of Revenue Services has extended deadlines for filing and payments associated with certain state business tax returns. Effective immediately, the filing deadlines for certain annual tax returns due on or after March 15, 2020, and before June 1, 2020, are extended by at least 30 days. In addition, the payments associated with these returns are also extended to the corresponding due date in June.

The impacted returns and the associated filing dates and payment deadlines are set forth below:

  • 2019 Form CT-1065/CT-1120 SI Connecticut Pass-Though Entity Tax Return: Filing date extended to April 15, 2020; payment deadline extended to June 15, 2020
  • 2019 Form CT-990T Connecticut Unrelated Business Income Tax Return: Filing date extended to June 15, 2020; payment deadline extended to June 15, 2020
  • 2019 Form CT-1120 and CT-1120CU Connecticut Corporation Business Return: Filing date extended to June 15, 2020; payment deadline extended to June 15, 2020

Business Interruption Insurance

A business interruption insurance policy should list or describe the types of events it covers. Events that are not described in the policy are typically not covered. It is important to review the policy exclusions, coverage limits, and applicable deductibles with your agent, broker or insurer. The Connecticut Insurance Department has an FAQ that provides more information.

V. New Jersey

New Jersey has not yet released any official assistance programs for businesses impacted by COVID-19. Several State agencies are currently engaging with local business leaders, local financial institutions, and business advocacy groups to better understand what supports would be most impactful to ensure business and employment continuity. While businesses await direction, the New Jersey Economic Development Authority (NJEDA) has a portfolio of loan, financing, and technical assistance programs available to support small and medium-sized businesses.

© 1998-2020 Wiggin and Dana LLP

Options for Employers When Employees Cannot Work From Home

Despite many politicians and employers discussing the option for employees to work at home, there are millions of employees who simply cannot do that. Bartenders, restaurant servers, cashiers, and many others have no one to serve and nothing to ring up when they work at home.

Employers of such employees accordingly have a difficult decision to make when business is at an all-time low or they have been shut down. Most cannot afford to pay employees during this time period and hope employees will qualify for unemployment benefits. The question for these employers thus becomes–to fire, or not to fire.

This is where a work furlough comes into play. A work furlough is essentially a temporary layoff that qualifies for unemployment benefits.

Furloughs rose in popularity some years ago when businesses had to cut costs. Most employers knew employees who worked from paycheck to paycheck would suffer a financial hardship if the employees lost their jobs. Employers did not want to terminate employment. These employers wanted to minimize the negative impact, psychologically and monetarily, a termination brings, and the hard feelings an employee may carry following termination. Employers wanted employees who were already-trained to return to work at the end of a furlough, rather than having to start the hiring process from scratch.

Work furloughs generally have a set beginning and end date, similar to the 15-day shut-down ordered in many cities. The employer does not pay the employee during the furlough. Employees, however, generally qualify for unemployment compensation benefits.

Employers who want to maintain better relations should tell their employees to apply for unemployment benefits on the first day of the furlough. This ensures the employees will receive the maximum compensation possible. Even an employee who uses vacation time or personal time may qualify for unemployment benefits.

Usually there is a one week waiting period before an employee is eligible to receive any unemployment benefits. Many states have benevolently waived this one week waiting period for job losses suffered due to the pandemic. In these states, employees will receive benefits beginning “day 1.” The employee will receive compensation during the second week and any later weeks during which the employee is not working.

Any employee who files after the first week of the furlough must use the second furlough week as the waiting period. The employee, therefore, loses a week of unemployment compensation.

Even if the furlough period is only one week in length, employees should file for benefits. This helps the employee if the employer is forced to extend a furlough or put employees on furlough again later that same year. The one-week waiting period only applies to the first week when the employee did not work during the first furlough. The employee does not have to wait yet another week to receive benefits (compensation) during any furloughs that take place within 12 months of the first furlough.

While furloughs are an excellent option for employers to consider, any employer considering termination or a furlough must carefully consider all state and local laws; the state emergency declarations and laws issued, given the pandemic; and federal law, including any relief package or whether the number of employees furloughed triggers obligations under WARN.

© Polsinelli PC, Polsinelli LLP in California

For more on the COVID-19 outbreak, see the National Law Review dedicated Coronavirus News section.

Families First Coronavirus Response Act: Paid Leave now Required for Absences Related to the Coronavirus (COVID-19)

Early Saturday, March 14, 2020 the House of Representatives passed the Families First Coronavirus Response Act (the “Act”). The Senate is set to take this matter up on Monday, March 16, 2020 and President Trump stated that he will immediately sign the legislation. The Act has many facets to it including new temporary employer obligations relative to paid leaves of absence related to the Coronavirus (COVID-19) and expands employer obligations under the Federal Family and Medical Leave Law. Employers have time to prepare as the law will be effective 15 days after enactment (potentially as soon as March 31, 2020, if signed Monday). While there is much remaining to be analyzed under this new law, the following provides an initial overview so employers can begin preparations for compliance and education of the workforce.

Expansion of FMLA rights

First, the Act expands the pool of employees that qualify for federal FMLA leave. The Act will require employers with fewer than 500 employees1 (and all government employers) to provide employees who have been employed for at least 30 days with FMLA leave for Coronavirus reasons if:

  1. The employee is absent from work due to the employee’s physical presence jeopardizing the health of others due to exposure to the Coronavirus or due to the employee exhibiting symptoms of the virus;
  2. The employee will care for a family member who a health care provider or a public health authority determines has been exposed to the Coronavirus or who exhibits symptoms of the virus; or
  3. The employee is needed to care for a son or daughter under 18 because a school or a place of care (daycare) has been closed or the child care provider is not available.

The definition of “family” in the application of the above requirements is expanded to include family members who are senior citizens, grandparents, grandchildren, next of kin of the employee or is a son or daughter with special needs. The definition of “spouse” also includes domestic partners, as defined under the law.

The rights and remedies available to an employee under the federal FMLA remain the same. Therefore, we recommend that employers review existing procedures and forms utilized to determine FMLA eligibility and update those materials to recognize the Act’s broadened scope.2

Enhanced Right to Paid Time Off

The Act also mandates that employers provide “Emergency Paid Sick Leave.” This benefit is available to employees to:

  1. Self-isolate because of a Coronavirus diagnosis;
  2. Obtain medical diagnosis or care if the employee is experiencing the symptoms of the Coronavirus;
  3. Comply with an order of a public official or Health Care Provider that physical presence at work would jeopardize the health of others due to the employee’s exposure to the Coronavirus or because the employee is exhibiting symptoms of the illness;
  4. Care for a family member of the employee due to the family member’s self-quarantining based upon exposure to the virus or because the family member is exhibiting symptoms and requires medical diagnosis or care; or
  5. Care for a child of the employee if a school or place of care has been closed or the care provider for the child is unavailable.

If an employee meets one or more of these qualifications, the Act provides that the employee is entitled to Emergency Paid Sick Leave. Specifically, full-time employees will have 80 hours of sick leave available to them and part-time employees will have their average hours of work over a 2-week period available as Paid Sick Leave. If the employee has variable hours of work each week, the employee’s average hours of work over the preceding 6 months will be used to determine the employee’s average hours per week. The sick leave benefit will be paid at the employee’s regular rate of pay for any absence due to the employee’s own treatment or quarantine. The sick leave benefit will be paid at two-thirds of the employee’s regular rate of pay for any absence to care for a family member or to provide child care due to school or daycare closure.

If an employee needs leave beyond the 2-weeks for Emergency Paid Sick Leave and continues to meet the requirements associated with the Act’s mandate for paid leave under the FMLA, the employee will be paid not less than two-thirds of the employee’s regular rate of pay (or minimum wage, if greater) for the regular hours of work missed, to the extent of the employee’s already-existing available FMLA leave. The changes to the FMLA under the Act will expire on December 31, 2020.

Finally, for employee absences associated with non-FMLA qualifying reasons (e.g., an employer’s decision to send an employee home because the employee is exhibiting flu-like symptoms), the employee may be eligible for Unemployment Insurance benefits beginning in the first week of absence. This provision will expire on December 31, 2020.

It is important to understand that the Act entitlement represents the “floor” of entitlement. In other words, employers will not enjoy a reduced obligation to provide Paid Sick Leave if it already offers Paid Sick Leave to employees. The Paid Sick Leave under the Act is in addition to what the employee may already be entitled to in employment. However, there will not be any carryover right for unused Sick Leave granted under the Act.

Again, it is important that employers revisit their protocol for determining eligibility for paid sick leave and prepare to implement the new mandate. Likewise, employers providing Paid Sick Leave and absence benefits should carefully log the wages paid related to compliance. As of now, the Act anticipates a tax credit available for sick leave wages paid to employees, subject to caps established under the law.

1 Exemptions for small employers (fewer than 50 employees) and certain emergency and healthcare workers continue to be discussed.
2 The DOL will be issuing a Notice related to the new requirements that must be posted along with other employment related Notices to employees.

©2020 von Briesen & Roper, s.c
For more on the developing Coronavirus situation, see the National Law Review dedicated Coronavirus News page.

Chicago and Cook County Paid Sick Leave Laws Go Into Effect July 1: Are You Ready?

As the holiday weekend approaches, many employers in Chicago and Cook County find themselves scrambling to prepare for the Chicago and Cook County Paid Sick Leave Ordinances that will take effect this Saturday, July 1, 2017. The Ordinances, though straightforward in their purpose of providing some limited sick paid time off to employees, raise a number of thorny, confusing questions and various administrative concerns for all employers. To add to this uncertainty, the City of Chicago only yesterday released its extensive final interpretative rules on the City’s Ordinance, which raise a number of interpretative questions and, in places, appear to diverge from the previously-issued final rules of the Cook County Commission on Human Rights on the County’s Ordinance. Not only that, the list of Cook County’s municipalities that are opting out from the County’s Ordinance has been changing, literally, by the hour. To help you get up to speed and make any final necessary changes, in this Alert we will review some key requirements and provide responses to some FAQs employers have been asking related to paid sick leave in Chicago and Cook County.

Paid Sick Leave Requirements

The Ordinances require employers in Chicago and certain municipalities in Cook County to provide all employees, regardless of full-time, part-time, seasonal, or temporary status, with one (1) hour of paid sick leave for every for 40 hours worked, up to a maximum accrual cap of 40 hours in any benefit year. Employees are entitled to begin using accrued paid sick leave following 180 days of employment, provided they have worked at least 80 hours in any 120 day period.

Employees must be allowed to use paid sick leave for any of the following reasons:

  • The employee is ill, injured, or requires medical care (including preventive care);

  • A member of the employee’s family is ill, injured, or requires medical care;

  • The employee or a member of his or her family, is the victim of domestic or sexual violence; or

  • The employee’s place of business, or the childcare facility or school of the employee’s child, has been closed by an order of a public official due to a public health emergency.

In addition to providing employees with paid sick leave, employers are required to inform employees about their rights to paid sick leave by posting the Chicago and Cook County notices in the workplace and distributing these notices to employees with their first paycheck following the Ordinances’ effective date, or with any new employee’s first paycheck.

Frequently Asked Questions

When updating their employment policies and/or practices, employers should be mindful of the following frequently asked questions:

Do the Ordinances apply to all employees working in Chicago and/or Cook County?

The Ordinances are broadly worded such that employers are required to provide paid sick leave to all employees working in the geographic boundaries of the City of Chicago and/or Cook County. However, the Cook County Ordinance permits municipalities in Cook County to opt out of the Ordinance prior to its effective date.

So far, more than half of the municipalities in Cook County have opted out of the Cook County Ordinance, meaning that employers are not required to provide paid sick leave to employees working in these locations. However, if an employee should change work locations, or travel for work, into a municipality that has not opted out of the Cook County Ordinance (such as the City of Chicago), the employee would be entitled to accrue paid sick leave for hours worked in that municipality.

Are employees able to carryover accrued paid sick leave?

The Ordinances permit employees to carryover half of their accrued unused paid sick leave, up to a cap of 20 hours, into the next benefit year. Employees working for employers covered by the Family Medical Leave Act (FMLA) may carryover up to an additional 40 hours of paid sick leave into the next benefit year, to be used exclusively for FMLA-specific purposes.

Nonetheless, in most instances, employers may cap the amount of paid sick leave that an employee can use in a benefit year at 40 hours. The exception to this rule being that employees who carryover and use all 40 hours of FMLA-specific paid sick leave may use an additional 20 hours of regular paid sick leave in any benefit year. Thus, in limited circumstances employees may be able to use as many as 60 hours of paid sick leave in a single benefit year.

Are employers permitted to front-load paid sick leave?

Both Ordinances permit employers to front-load paid sick leave at the start of the benefit year, or at the time of hire. Employers who front-load paid sick leave do not need to track paid sick leave accrual or permit the carryover of paid sick leave into the next benefit year, provided that the requisite amount of paid sick leave has been front-loaded. The precise amount of paid sick leave to be front-loaded may depend on whether the employer is subject to FMLA and/or based in Chicago or Cook County, as their respective rules address front-loading differently. Employers with questions regarding the precise amount of paid sick leave that must be provided to employees should contact counsel.

Are employers able to provide paid time off in lieu of paid sick leave?

Employers may provide employees with paid time off (PTO) instead of paid sick leave, provided that all their employees are provided at least as much PTO as the Ordinances require to be made available for paid sick leave use in a benefit year. Employers should note, however, that accrued unused PTO must be paid out upon termination of employment. There is no such requirement to pay out accrued unused paid sick leave.

Recommendations

In light of the impending effective date for Chicago’s and Cook County’s Paid Sick Leave Ordinances, it is important that employers take any remaining necessary steps to ensure that their paid sick leave policies and practices will comply with the Ordinances. Policies that do not provide the requisite benefits to employees, or those that are silent on key issues such as paid sick leave accrual and/or usage restrictions, will be construed against the employer and could lead to costly violations.

This post was written by Alexis M. Dominguez and Sonya Rosenberg  of Neal, Gerber & Eisenberg LLP.

Calculation of California Paid Sick Leave May Spook Employers

As if paid sick leave wasn’t scary enough!  From accrual methods, to the protections provided to the time off, to the varying (and ever growing) laws in different jurisdictions, paid sick leave can be spooky.  What about how to calculate the rate of pay for the paid sick leave??  On October 11, 2016, the California Department of Industrial Relations, Division of Labor Standards Enforcement (“DLSE”) issued an opinion letter regarding its interpretation under California’s Healthy Workplace Health Families Act of 2014 (the “California Paid Sick Leave Law”) of the method of calculation of paid sick leave for employees paid by commissions and exempt employees who are given an annual, non-discretionary bonus.

California paid sick leave, State SealAs discussed in our July 13, 2015 article, the California legislature amended the California Paid Sick Leave Law to address, amongst other topics, the calculation of the rate of pay for sick leave.  In the Amendment, the legislature provided the following clarification regarding calculation of the rate of pay of sick time:

  • Non-exempt employees. The Amendment required an employer to calculate paid sick time for non-exempt employees using one of the following methods: (1) calculate the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek; OR (2) divide the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

  • Exempt employees. The Amendment required that paid sick time for “exempt employees” be calculated in the same manner as the employer calculates wages for other forms of paid leave time. This provision of the Amendment did not limit the categories of exempt employees which this calculation method applied to.

Now the DLSE has issued an opinion letter further interpreting these provisions.

How Should Employers Calculate Paid Sick Leave for Employees Only Receiving Commissions?

According to the DLSE’s opinion letter, employers must calculate paid sick leave payments for employees “who are almost entirely paid by commissions” as if they are non-exempt employees under the Amendment.  This opinion letter takes the position that only those employees exempt under one of the white collar exemptions (professional, executive, or administrative exemptions) may be paid their sick leave as an “exempt employee” under the Amendment.  The DLSE’s opinion letter maintains that employees classified as exempt under the outside or inside sales exemptions are not deemed to be “exempt” for purposes of the Amendment’s calculation of the rate of pay for sick leave.

How Should Employers Calculate Paid Sick Leave for Exempt Employees Who Receive an Annual Bonus?

The DLSE’s opinion letter then addressed how an employer calculates paid sick leave for an exempt employee under the white collar exemptions and who also receives a non-discretionary annual bonus at the end of each year.  The DLSE reasoned that a non-discretionary bonus does not figure into the salary of an exempt employee, and that under the Amendment, the employee would be paid an amount of pay equal to his or her regular salary for the sick day.

ARTICLE BY Susan E. Groff & Melissa L. Yen of Jackson Lewis P.C.

Jackson Lewis P.C. © 2016

Chicago Joins Growing Trend in Requiring Paid Sick Leave

paid sick leaveThe City of Chicago joined an emerging national trend when it unanimously passed an ordinance that requires employers to provide workers with paid sick days.

The change will go into effect on July 1, 2017, and expands benefits already provided under the Family Medical Leave Act (FMLA). The FMLA grants covered employees up to 12 weeks of unpaid time off to attend to the serious health condition of the employee or a covered family member. In contrast, the Chicago ordinance requires businesses to provide eligible employees one hour of paid sick leave for every 40 hours worked, up to 40 hours of total paid sick leave in each 12-month period.

The ordinance, which is technically an amendment to Chicago’s minimum wage law, covers all employees who perform at least two hours of work within the City in any two-week period and who work at least 80 hours during any 120-day period. The ordinance applies to all employers, regardless of the number of employees, that maintain a business facility within the geographic boundaries of the City or who are subject to one of the City’s licensing requirements. The law permits employees to carry up to 2.5 paid sick days over to the following year, but does not require employers to pay employees for unused sick days.

New employees will be eligible to use paid sick days after an initial six-month probationary period. Employers who already offer paid time off that satisfies the requirements of
the ordinance will not be required to provide additional benefits.

Under the ordinance, employees will be able to use paid sick leave for their own illnesses, injuries, medical care or preventative care, or for the illnesses, injuries, medical care or preventative care of covered family members. Pursuant to the law, “family members” is construed broadly to include a child, legal guardian, spouse, domestic partner, parent, the parent of a spouse or domestic partner, sibling, grandparent, grandchild or any other individual related by blood whose close association with the employee is the equivalent of a family relationship. Employees also can use paid sick leave if they or their family members are victims of domestic violence or if their place of business or child care facility has been closed due to a public health emergency.

In passing the amendment, Chicago has added another potential landmine in the already tough- to-navigate employer/employee relationship. The ordinance allows employers to require that employees who use paid sick leave for more than three consecutive days provide certification that the leave was for a qualifying purpose. However, the ordinance prohibits employers from inquiring as to the specific nature of the medical issue. As such, employers should tread carefully when addressing employees’ health issues and corresponding requests for time off.

Currently, four states have laws requiring employers to issue paid sick leave benefits. Connecticut passed the first such law in 2011, followed by Massachusetts and California in 2014 and Oregon in 2015. Likewise, roughly 20 cities across the country have enacted similar regulations, including San Francisco, Washington D.C., Seattle and Philadelphia.

ARTICLE BY David M. Holmes, Alexander L. Reich & Angela M. Sekerka of Wilson Elser Moskowitz Edelman & Dicker LLP
© 2016 Wilson Elser