Legislative Update: Expanding Leaves and Pandemic Coverage

by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel

& Armando Rodriguez, Esq - Product Compliance Counsel, Compliance And Legal Department

September 28, 2020


September has been quite the month for expanding leave benefits, both COVID-19 related and otherwise. Oregon has issued an administrative rule permanently allowing for sick child leave to be taken for school closures, California expanded coverage under the California Family Rights Act (CFRA) as well as creating a supplemental sick leave for some of those left out of the Families First Coronavirus Response Act (FFCRA), Hawaii adds care of grandchild as a covered reason for leave under the Hawaii Family Leave Act (FLA), and the city of Brotherly Love has enacted an ordinance providing a public health emergency paid leave.

Here’s a summary of what you need to know:

School Closures and Unavailable Childcare in Oregon

Back in March of 2020, in response to the COVID-19 pandemic, the Oregon Bureau of Labor and Industries issued a temporary administrative order expanding the scope of sick child leave under the Oregon Family Leave Act (OFLA) to include care of a child whose school or child care provider has been closed in conjunction with a statewide public health emergency declared by a public health official. On September 11, 2020, the Bureau made the administrative order permanent.  Additionally, the Bureau also issued a temporary administrative order providing clarification with regard to the permanent change. In its temporary order, the Bureau clarified the following:

  • "Child Care Provider" means a place of care or person who cares for a child.
    • A person who cares for a child includes paid (nannies, au pairs, and babysitters) and unpaid (grandparents, aunts, uncles, or neighbors) individuals
    • Place of care means any physical location in which care is provided for a child including day care facilities, preschools, before and after school care programs, schools, homes, and summer camps
  • "Closure" means a closure that is ongoing, intermittent, or recurring and restricts physical access to the child's school or child care provider

The Bureau also clarified that an employer may request verification of the need to care for a child due to a school closure, including the name of the child being cared for, the name of the school or child care provider that is closed or unavailable, and a statement that no other family member is willing and able to care for the child during daylight hours. Note that this administrative rule mirrors the recent guidance issued by the Department of Labor with regards to school closures under the FFCRA.  Matrix is already administering OFLA sick child leave in accordance with this new rule, based on the prior temporary administrative order.

California COVID-19 Supplemental Paid Sick Leave

On September 9, 2020 California Governor Gavin Newsom signed AB 1867 into law. While AB 1867 includes a mandate creating a small employer family leave mediation pilot program and a requirement that food sector employees wash their hands every 30 minutes, you’re probably most interested in the expansion of the Healthy Workplaces, Healthy Families Act of 2014 (California’s paid sick leave law). In its relevant part, AB 1867:

  • Expands California’s paid sick leave law to provide a COVID-19 supplemental paid sick leave for food sector workers, health care providers and emergency responders whose employer has excluded them from coverage under the federal FFCRA, and employees of private businesses who employ more than 500 employees.
  • The COVID-19 supplemental paid sick leave is intended to cover employees excluded from the FFCRA, and mirrors the FFCRA with regard to the amount of leave available (2 weeks of leave, up to a maximum of 80 hours).
  • However, unlike the FFRCA, the COVID-19 supplemental paid sick leave does not include provisions for care of others or for school closures and may only be used for the following reasons:
  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19
  • The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19
  • The employee is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19

These COVID-19 supplemental paid sick leave provisions are set to expire as of December 31, 2020, or upon the expiration of any federal extension of the FFCRA, whichever is later. 

Hawaii Defines Siblings and Covers Grandchildren

On September 15, 2020, Hawaii Governor David Ige signed HB 2148, expanding Hawaii’s Family Leave Act with the following changes:

  • "Sibling," which was previously undefined, is now defined to mean an individual who is a biological, adopted, or foster brother or sister; or a stepbrother or stepsister of an employee
  • The bill added “grandchild” to the list of covered relationships. FLA now provides up to four weeks of family leave during any calendar year to care for the employee's child (biological, adopted, or foster son or daughter; a stepchild; or a legal ward), spouse, reciprocal beneficiary, sibling, grandchild, or parent (defined broadly to include biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, a grandparent, or a grandparent-in-law) with a serious health condition.

Although HB 2148 was just signed, its effective date was July 1, 2020. Matrix will begin administering the Hawaii FLA in accordance with these changes immediately.

California Expands CFRA

On September 17, 2020, California Governor Gavin Newsom signed SB 1383 into law. The new law significantly expands CFRA. The following changes take effect January 1, 2021:

  • Expands CFRA to cover any employer with 5 or more employees (currently, employer coverage starts at 50 or more employees)
  • Repeals the New Parent Leave Act (currently the NPLA provides bonding leave for employees of employers with 20-49 employees)
  • Expands covered relationships from child, parent, spouse, and domestic partner to include grandparent, grandchild, and sibling
  • Removes the age limit to care for a child; leave will be available to care for a child under age 18 or an adult dependent child
  • Allows parents who are employed by the same employer to each have the full 12 weeks of bonding leave without sharing the CFRA entitlement
  • Adds as a covered leave reason qualifying military exigencies related to the covered active duty or call to covered active duty of an employee's spouse, domestic partner, child, or parent in the Armed Forces

Matrix will be prepared to administer the expanded CFRA as of January 1, 2021.

Philadelphia Public Health Emergency Paid Sick Leave

On September 17, 2020, Philadelphia Mayor Jim Kenny signed an amendment to Chapter 9-4100 of the Philadelphia Code expanding the city’s existing paid sick leave law by providing a new public health emergency leave to those employees not covered by the FFCRA. Like the FFCRA, the Philadelphia ordinance provides employees with up to 80 hours of paid leave to be used at any time during a declared public health emergency for purposes that closely track FFCRA.  For a detailed discussion of the new Philadelphia ordinance, check out this article from A Better Balance.

Matrix can help!

At Matrix, we monitor state and federal legislation daily to stay on top of these changes as they happen. If you ever have questions about leave and accommodation laws – current or just introduced! – please contact your account manager or send an email to [email protected].