Emergency Paid Sick Leave: Federal and State Update

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This update focuses on the Emergency Paid Sick Leave provisions under the Families First Coronavirus Response Act, covering qualifying reasons for paid sick leave related to COVID-19, eligibility criteria for employees, and the amount of paid leave available for full-time and part-time employees. The article emphasizes the need for staying updated with the evolving legislation and consulting legal experts for the most current information. Presented by Kristin White from Fisher & Phillips LLP.

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EMPLOYMENT LAW UPDATE: FEDERAL AND STATE SICK LEAVE American Subcontractors Association of Colorado Presented by: Kristin White, (303) 218-3658, kwhite@fisherphillips.com www.fisherphillips.com Fisher & Phillips LLP fisherphillips.com

Families First Coronavirus Response Act Overview Emergency Family and Medical Leave Act Federal Paid Sick Leave Colorado Healthy Families and Workplace Act fisherphillips.com

FAMILIES FIRST CORONAVIRUS RESPONSE ACT OVERVIEW Paid and Unpaid Leave for Coronavirus-Related Reasons Emergency Paid Sick Leave Emergency Family and Medical Leave Act (Expands FMLA) Please note: this is preliminary information that is constantly changing; refer to updated Act language for most current information and contact your Fisher Phillips attorney with any questions. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

EMERGENCY PAID SICK LEAVE Please note: this is preliminary information that is constantly changing; refer to updated Act language for most current information and contact your Fisher Phillips attorney with any questions. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

EMERGENCY PAID SICK LEAVE Any employee who works for employer is eligible No minimum days/hours of employment If the EMPLOYEE is sick, employee is entitled to: Full-time Employees 80 hours of paid sick leave Part-time Employees Paid based on the average number of hours the employee worked for the six months prior to taking this paid sick leave. Or, if employed for less than 6 months, the average number of hours per week the employee would normally be scheduled Please note: this is preliminary information that is constantly changing; refer to updated Act language for most current information and contact your Fisher Phillips attorney with any questions. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

EMERGENCY PAID SICK LEAVE Qualifying Reasons Must provide paid sick time to the extent 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 or self-quarantine as described above. (5) The employee is caring for a son or daughter if school or child care is closed/unavailable. (6) The employee is experiencing any other substantially similar condition specified by HHS (catch all). Please note: this is preliminary information that is constantly changing; refer to updated Act language for most current information and contact your Fisher Phillips attorney with any questions. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

EMERGENCY PAID SICK LEAVE At employee s regular rate for qualifying reasons (1), (2) or (3) Compensated at HIGHER of their regular rate, federal minimum wage or local minimum wage At 2/3 the employee s regular rate for qualifying reasons (4), (5) or (6) Capped at the following levels: $511 per day and $5,110 in the aggregate per person for qualifying reasons (1), (2) and (3). $200 per day and $2,000 in the aggregate per person for qualifying reasons (4), (5) and (6). Please note: this is preliminary information that is constantly changing; refer to updated Act language for most current information and contact your Fisher Phillips attorney with any questions. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

EMERGENCY PAID SICK LEAVE CONT. Additional General Rules Sick leave does not carry over Employer may not require employee as a condition of paid leave to find a replacement to cover scheduled hours Employee may first use paid sick time under this law before other paid leave Employer may not require employee to use other paid leave provided by the employer before using this paid sick leave fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

EMERGENCY PAID SICK LEAVE Notice Requirements Employers: Employers must post a notice regarding the requirements of the law. Model notice available from Department of Labor Employees: After the first workday (or portion thereof) an employee receives paid sick leave, the employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

EMERGENCY PAID SICK LEAVE Tax Credits Employers subject to the requirements are entitled to a tax credit equal to the amount of the qualified paid sick leave requirements paid by the employer per quarter. The tax credits for qualified paid sick leave wages are capped at $511 per day per person for qualifying reasons (1), (2) and (3). $200 per day per person for qualifying reasons (4), (5) and (6). The tax credits are applied against quarterly payroll deposits (with some restrictions), but employers are reimbursed if their costs for qualified leaves exceed the taxes they would owe. Employers may be able to apply for an expedited reimbursement. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

FAQ Are employees entitled to Paid Sick Leave if a shelter-in-place or stay-at-home order forces the business to close or furlough or layoff employees (either as a direct result of the order or because customers are subject to the stay-at-home order)? Generally, no. However, if an employer is open and has work available, but an employee is unable to work because of a shelter-in-place or stay-at-home order, the employee would be eligible for Paid Sick Leave. The availability of telework may be a significant issue in some of these determinations. fisherphillips.com

Hypotheticals Hypothetical No. 1 A state issues a shelter-in-place order that requires certain businesses (including fitness gyms) to close. Employee A works at the front desk of a fitness gym. Telework is not available for this type of work. Employee A is not eligible for EPSL because the business is closed as a result of the order, not because the employee was subject to the order. Hypothetical No. 2 A state issues a shelter-in-place order that requires those aged 65 or older to stay home. Employee A is 70- years old and works as a mechanic at an auto repair facility (which is an essential service and remains open under the state order). Telework is not available for this type of work. Employee A is eligible for EPSL because, but for the shelter-in-place order that applies to the employee due to their age, they would otherwise be able to perform work that is allowed by the employer. Hypothetical No. 3 A state issues a shelter-in-place order that requires those aged 65 or older to stay home. Employee A is 30- years old and works as a mechanic at an auto repair facility (which is an essential service and remains open under the state order). Telework is not available for this type of work. Employee A is not eligible for EPSL because they are otherwise able to perform work that is allowed by the employer. fisherphillips.com

EMERGENCY FAMILY AND MEDICAL LEAVE Please note: this is preliminary information that is constantly changing; refer to updated Act language for most current information and contact your Fisher Phillips attorney with any questions. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

EMERGENCY FAMILY AND MEDICAL LEAVE ACT Significantly expands FMLA on a temporary basis Any employee who worked for employer for 30 days prior to leave and has a qualifying reason is eligible (no requirement of 12 months/1250 hours) Provides up to 12 weeks of job-protected leave (paid after the first 10 days) Please note: this is preliminary information that is constantly changing; refer to updated Act language for most current information and contact your Fisher Phillips attorney with any questions. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

EMERGENCY FAMILY AND MEDICAL LEAVE ACT Qualifying Reasons 12 weeks of job protected leave when: The employee is unable to work (or telework) due to the need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. FMLA definition of son or daughter will apply. Public Health Emergency An emergency with respect to COVID-19 declared by a Federal, State or local authority Please note: this is preliminary information that is constantly changing; refer to updated Act language for most current information and contact your Fisher Phillips attorney with any questions. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

EMERGENCY FAMILY AND MEDICAL LEAVE ACT How does it work? First 10 days of EFMLA may be unpaid Emergency Paid Sick Leave may be available to employee An employee may elect to substitute accrued PTO, vacation, or sick leave to cover any portion of first 10 days Employer cannot require an employee to substitute such leave After the first 10 days: Compensated at 2/3 of the regular rate Part-time employees/irregular schedule entitled to be paid based on average number of hours employee worked in prior 6 months, or if employed less than 6 months, average number of hours employee would normally be scheduled to work Pay capped at $200 per day and $10,000 in aggregate per employee Bargaining unit employees apply EFMLA consistent with the CBA Please note: this is preliminary information that is constantly changing; refer to updated Act language for most current information and contact your Fisher Phillips attorney with any questions. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

EMERGENCY FAMILY AND MEDICAL LEAVE ACT Job Restoration/Reinstatement If 25 or more employees, traditional restoration obligation If fewer than 25 employees, the traditional job reinstatement provisions of the FMLA do not apply IF the following conditions are met (note this does not excuse provision of E-FMLA): The employee takes E-FMLA The position the employee held when the leave started does not exist due to economic conditions or other changes in operating conditions of the employer (I) that affect employment; and (ii) are caused by a public health emergency during the period of leave The employer makes reasonable efforts to restore the employee to an equivalent position, with equivalent pay, benefits, and other terms If reasonable efforts to restore to an equivalent position fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available during the 1 year period beginning on the earlier of (A) the date on which the qualifying need related to a public health emergency concludes; or (B) the date that is 12 weeks after the date on which the employee s leave for E-FMLA commences. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

EMERGENCY FAMILY AND MEDICAL LEAVE ACT Tax Credits Employers subject to the requirements are entitled to a tax credit equal to the amount of the paid family and medical leave requirements paid by the employer. The tax credits for qualified wages are capped at $200 per day and $10,000 per calendar quarter per employee. The tax credits are applied against quarterly payroll deposits (with some restrictions), but employers are reimbursed if their costs for qualified leaves exceed the taxes they would owe. Employers may be able to apply for an expedited reimbursement. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

Documentation for EPSL and EFMLA Important: The IRS will require documentation supporting a tax credit. So, in this busy and worrisome time, when employers may be tempted to forego documentation and give employees the time off they need, it will be important to gather the necessary information. The information also will be important in the event of a dispute relating to a request for leave. Paid Sick Leave Documentation Documentation of childcare being unavailable fisherphillips.com

EPSL and EFMLA Summary EPSL In addition to any other paid leave available EFMLA Employee only has a total of 12 weeks available assuming employer is subject to FMLA leave. fisherphillips.com

COLORADO HEALTHY FAMILIES AND WORKPLACE ACT Please note: this is preliminary information that is constantly changing; refer to updated Act language for most current information and contact your Fisher Phillips attorney with any questions. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

COLORADO HEALTHY FAMILIES AND WORKPLACE ACT Signed on July 14, 2020 Extends COVID-19-related sick leave protections to take effect immediately. Creates a traditional paid sick leave requirement beginning January 1, 2021. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

Federal Emergency Paid Sick Leave Applies To All Colorado Employers From July 14, 2020 through December 31, 2020, all employers in Colorado must provide paid sick leave for reasons related to the COVID-19 pandemic in the amounts and for the purposes specified in the federal Families First Coronavirus Response Act. Colorado s new law provides that it applies to all employers, regardless of size. FFCRA s Emergency Paid Sick Leave Provisions will become applicable to Colorado employers with more than 500 employees. The Act is unclear if the exemption for businesses with less than 50 employees remains in effect. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

Colorado Paid Sick Leave Starts January 1, 2021 Beginning January 1, 2021, the Act requires employers with 16 or more employees to provide paid sick leave to their employees. Accrued at one hour of paid sick leave for every 30 hours worked, up to a maximum of 48 hours. Beginning January 1, 2022, the Act applies to all employers regardless of size. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

COLORADO PAID SICK LEAVE An employee: Begins accruing paid sick leave when the employee's employment begins; May use paid sick leave as it is accrued; and May carry forward and use in subsequent calendar years paid sick leave that is not used in the year in which it is accrued. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

COLORADO PAID SICK LEAVE If an employer already has a more generous PTO, vacation, or sick leave policy (meaning providing at least 48 hours of sick leave), the employer does not need to provide additional leave. The accrual must be as generous as that required in the Act and be available immediately and for part-time employees. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

COLORADO PAID SICK LEAVE While the Act refers to paid sick leave as wages, it specifically provides that unused paid sick leave need not be paid out at termination. Any unused paid sick days must be reinstituted if the employee is rehired within six months of termination. The paid sick leave also carries over to any successor employer. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

COLORADO PAID SICK LEAVE Employees may use accrued paid sick leave to be absent from work for the following purposes: The employee has a mental or physical illness, injury, or health condition; needs a medical diagnosis, care, or treatment related to such illness, injury, or condition; or needs to obtain preventive medical care; The employee needs to care for a family member who has a mental or physical illness, injury, or health condition; needs a medical diagnosis, care, or treatment related to such illness, injury, or condition; or needs to obtain preventive medical care; The employee or family member has been the victim of domestic abuse, sexual assault, or harassment and needs to be absent from work for purposes related to such crime; or A public official has ordered the closure of the school or place of care of the employee's child or of the employee s place of business due to a public health emergency, necessitating the employee s absence from work. Employers may require documentation from the employee if they take four or more consecutive paid sick days. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

PUBLIC HEALTH EMERGENCY PAID SICK LEAVE In addition to the paid sick leave accrued by an employee, the Act requires an employer to provide its employees an additional amount of paid sick leave during a public health emergency in an amount based on the number of hours the employee works. There is no documentation requirement for an employee to take this leave for self-isolation due to a positive diagnosis, seeking medical treatment with respect to a disease, caring for a family member or a child, or inability to work due to pre-existing health conditions. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

PUBLIC HEALTH EMERGENCY PAID SICK LEAVE For full-time employees, this amounts to 80 hours of total paid sick leave (an additional 32 hours). For employees who regularly work less than 40 hours per week, employers must provide the greater of the number of hours the employee is scheduled to work in a 14-day period or the average time the employee works in a 14- day period. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

ANTI-RETALIATION PROVISIONS The Act prohibits an employer from retaliating against an employee who uses the employee's paid sick leave or otherwise exercises the employee's rights under the Act. Employees who believe their rights under the Act were violated may file a charge with the Division of Labor, and bring a civil action within two years if they exhaust all administrative remedies. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

WHAT SHOULD EMPLOYERS DO? There are immediate steps Colorado employers must take to come into compliance, and some preparations to consider in advance of the 2021 requirements. The Colorado Division of Labor will issue regulations regarding the leave requirements in the near future, and you should be aware of these rules to the extent they expand or clarify your requirements. Colorado employers with more than 500 employees who have not been subject to FFCRA will need to ensure compliance once signed through the end of the year. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

WHAT SHOULD EMPLOYERS DO? Once 2021 arrives, employers must provide employees with a written notice of their rights and display a poster detailing employees rights under the Act. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM

WHAT SHOULD EMPLOYERS DO? Retain Records The new law requires employers to retain records, documenting by employee, the hours worked, paid sick leave accrued, and paid sick leave used. This is a critical requirement because you will need to make such records available to the Division of Labor upon request. fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAWTM