COVID-19 State and Local Employment Law Developments
As COVID-19 cases have swept across the country, state and local governments have reacted by issuing various orders and guidance affecting employers and their employees. Although it is not possible to discuss all related state and local developments that have occurred, this update provides a brief overview of some of these developments to help you maintain compliance for your organization.
Over half of all states have issued this type of order. In addition, over 80 counties and more than 10 cities have issued their own orders, typically in the absence of a state order. Many of these orders require that individuals in the jurisdiction stay at home except for essential activities, which includes travel to a job that is defined as essential. The definition of essential businesses or operations differs between the orders, but many of them include the list issued in guidance by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA). This CISA list identifies those workers who are considered part of the essential critical infrastructure broken down into 16 critical infrastructure sectors.
Several of the orders also require that non-essential businesses cease operations at their physical locations, but do allow for minimum basic operations to continue such as the minimum necessary activities to:
Maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or for related functions.
Facilitate employees of the business being able to continue to work remotely from their residences.
Many non-essential businesses may be required to accommodate their workforce, wherever practicable, for teleworking or working from home. Essential businesses are also encouraged to allow employees to telecommute whenever possible.
While most locations with paid leave laws have not expanded the amount of leave, many are providing guidance on existing paid leave laws for absences related to COVID-19. Some states, however, have changed eligibility or waiting period requirements, such as California waiving the one-week waiting period to receive paid leave for people who are unemployed and/or disabled as a result of COVID-19.
States without existing paid sick leave laws such as Colorado have passed paid sick leave laws and regulations specific to COVID-19. The Colorado Health Emergency Leave with Pay Rule temporarily requires employers in certain industries, including leisure and hospitality, food services, child care, education, home health, nursing homes and community living facilities, to provide up to four days of paid sick leave to employees with flu-like symptoms who are being tested for COVID-19.
Even prior to the passage of the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which vastly expands unemployment benefits paid for by the federal government, the vast majority of states had already relaxed their standards of eligibility for unemployment benefits for workers affected by COVID-19. Examples of this include:
Allowing workers to apply for unemployment benefits, whether because they are completely out of work or have reduced hours.
Waiving the unpaid waiting period, so that a worker receives unemployment benefits starting the first day of unemployment (or reduction in hours).
Permitting online applications where local offices are closed.
Waiving the requirement that workers must register for work and actively search for work.