Clare Morin:

Welcome to HR Trends. I'm your host, Clare Morin. And, today we have two legal powerhouses with us in the studio. We have Ellen McCann and Daris Freeman. They are both assistant vice presidents and legal counsel at Unum Employment Law Group. Welcome, Ellen and Daris.

Daris Freeman:

Thank you, Clare.

Ellen McCann:

Thank you, Clare.

Clare Morin:

You have heard them both before on the podcast. They've been appearing regularly to help guide us through the complex leave laws amid this pandemic. And, particularly today, we're looking really at the state leave laws, which is such a complex question right now.

Clare Morin:

Ellen, I wondered if we could begin. Before the pandemic hit, what already existed out there in terms of, for example, paid leave laws that our audience might not even know existed? Could you just give us that kind of landscape?

Ellen McCann:

Sure. And Clare, we really had three different kinds of paid leave laws that applied to employers. Many employers weren't even aware that they had these obligations, but in particular, I think it makes sense to focus on what we call the employer mandated paid leave laws. And, those were laws where employers were mandated by their local jurisdiction to have paid leave provided to their employees. And, really in the pandemic arena, they come up in two different categories of applicability.

Ellen McCann:

And, so the first is that most of these laws do provide that the employer has to provide leave for an employee who is ill or seeking a diagnosis, as well, as if they have a family member who is ill or seeking a diagnosis. That category of law would obviously apply in the situation where either the employee or their family member was being diagnosed for COVID or actually was suffering from COVID.

Ellen McCann:

And, many states already had laws that required employers to provide paid sick leave in those situations. And, in addition to the states, we had over 20 minute municipalities also passed similar laws, so that if we had employees who were working in those cities or counties, the employer had to provide paid leave law for them in those situations. And, we've seen that in states like Massachusetts, California, Connecticut, those laws already existed.

Ellen McCann:

But in addition to that, we had laws that specifically applied in the situation of a quarantine or a closure. If the employee's child school was closed due to a public health emergency, or if the employee's business was closed during a public health emergency, those laws already existed and they were paid laws. And, there are states like Washington, Vermont, Rhode Island, New Jersey already had laws like that. Overall there were 16 different states that had employer mandated paid leave laws that would apply in the pandemic situation that we're in. As well as, as I mentioned, over 20 municipalities. If employers were not already familiar with those laws, they're going to want to make sure they check out whatever those laws are in the jurisdictions where their employees are working to make sure that they're providing that paid leave that they are required to provide in this situation.

Clare Morin:

Right. That's so helpful. That's kind of the starting place, the existing laws. Obviously, in mid-March, we saw that families first coronavirus response act, FFCRA being created. April 1st, I believe it was signed into law. Daris, I wonder if I could ask you. We've seen the federal law pass. Have we seen the states doing anything similar?

Daris Freeman:

Absolutely. A lot of the states have stepped up, states and local jurisdictions to provide paid leave for their workers for COVID related reasons. And, it kind of falls into two buckets there. One, are those states or jurisdictions that have wanted to provide those protections for workers who work for larger employers, those who are not subject to the federal FFCRA. You have states like California, Colorado, a lot of cities within the state of California, as well, that has passed kind of an FFCRA equivalent for larger employers.

Daris Freeman:

And, then you have some states that have passed broader legislation that apply really to kind of all employers and all employees, and may have even brought in some reasons that might not have been under the federal law. Again, California is the popular one. They've got a lot of cities that have passed those kinds of laws, especially up in that Silicon Valley area. And, then also for instance, District of Columbia has something like that. You definitely have states and cities, counties that are passing laws to provide paid leave for workers who have been impacted by COVID, and those laws are coming about. I think every week I see a new one come across my desk. It's a very active area of the law right now, and something employers really need to be paying attention to.

Clare Morin:

So helpful. And, I wonder if you could talk a bit to Colorado, actually. Because, I know I've heard you both speaking about Colorado is one of these states being very active right now. Could you explain what they're doing?

Daris Freeman:

Sure. Colorado did something. They actually passed three laws in one related to COVID, and what they did was pass kind of the federal equivalent, the FFCRA equivalent for the larger employers for 2020. To get us through the end of the year and match up with what the federal law is doing there. But, then they passed a broader paid sick or paid leave provision that takes effect in January that has really two components.

Daris Freeman:

The first is very similar to what Ellen started with and that's paid leave for employees or their family members who have an illness or being diagnosed. Also, closures related to public health emergencies. But, they tacked on to that up to an additional two weeks of leave, if there is a public health emergency that required... Similar to what we've gone through with COVID. It could be a continuation of COVID. It could be something new. Because, this laws is going on indefinitely after January 1st. But, the interaction between kind of the traditional paid leave that they passed and this supplementive two weeks that would be tied to public health emergency is pretty complicated. And, it's really difficult for employers to wrap their policies around that and figure out how they're going to handle these kinds of overlapping banks of time should there be a public health emergency. But, yeah, Colorado passed three laws at once covering different things for different periods of time. Very interesting.

Clare Morin:

Wow. So helpful. Ellen, I wonder. We've been talking about paid leave, but has there been any unpaid leave sort of being applied by states and in response to the pandemic?

Ellen McCann:

There have been, Claire. A couple of states, Oregon, DC have amended existing laws to provide for unpaid leave, in certain circumstances. We also have seen some activity in New Jersey and Michigan. And, what's interesting is the existing paid leave laws that we started discussing at the beginning, some of those had an unpaid leave requirement for very small employers. The threshold was, for instance, if you had 11 employees you provided paid leave. If you had less than 11, you provided unpaid leave. Employers need to be careful to make sure that in addition to understanding their paid leave obligations, they may have the obligation to provide unpaid leave.

Ellen McCann:

And, some folks listening may say, "Well, what difference does it make? Why do we care about unpaid leave?" You care about unpaid leave, because it's job protected. A lot of employers have policies that say to their employees when you've exhausted of your paid leave entitlements, and you're starting to use unpaid leave. That could be a performance management triggering event. Because, in the employer's mind, we gave you paid leave. You took it all. You're now dipping into unpaid leave and that's problematic. Particularly, industries like contact centers, those types of environments. Here, the employer would not be able to performance manage the employee, if they had the right to take unpaid leave under a state or municipal ordinance. Because by virtue of the regulation, that is a job protected event.

Clare Morin:

That's so helpful. And, I'm sure our audience, as we close this episode is thinking, you've both referred to how complex this is, right? Would you share any best practices for our audience listening? How should they be staying on top of this? Or any recommendations you have? Maybe, Daris, let's start with you.

Daris Freeman:

Yeah. I can tell you what we've done here at Unum, because we have employees in almost, if not all, 50 states. And, that is that we have the policies to address those paid leave laws that had already existed at a state level. But then, are supplementing that, if you will, with a COVID specific policy that incorporates all the different jurisdictions and states that have COVID specific requirements for leave. We've built those into a single COVID policy and made that available to all our employees in all those different jurisdictions. We've published that. They know what's available to them, and we've got it consolidated in a single COVID policy that then is tied to the broader paid leave policy for those existing laws that were already out there.

Clare Morin:

That's wonderful. And, Ellen, any final thoughts on how employers, HR teams can be keeping up to date with all this?

Ellen McCann:

As Daris mentioned, it is difficult to keep up. Because, the laws do change virtually weekly. There are a lot of compilations out there from different law firms and from some of the insurance brokers that have websites and publications out there. But, really, the true source, if you will, is to go to your state or your city, their own website to see what is out there. Most cities and states are doing a really good job keeping up with COVID. As far as communications, they have a section of their own governmental webpage that is addressing COVID.

Ellen McCann:

We found, this is probably at least one of the examples that I've seen. Where we have the most transparent communication coming from some of these governmental agencies. It's always best to make sure you're looking at those resources, looking and at what's on the website. Because, a compilation you may find may look fantastic, but if it was written a month ago, or particularly if it was written in April, which we saw a lot of publications back in April, it may be obsolete. And, of course also check with your own counsel to make sure that they feel that you have captured all of the obligations that you need to be concerned about.

Clare Morin:

Well, thank you both so much for unpacking this. And anyone listening, if you do have questions, please let us know. You can email us HRtrends@unum.com. You can even call us. 207-200-6685, and please subscribe. Download on your favorite podcast app, whether it's Spotify, Apple podcasts. Look for HR Trends, subscribe, and you're going to hear more updates from these wonderful legal powerhouses. Thank you, Ellen and Daris.

Daris Freeman:

Thank you, Clare.

Ellen McCann:

Thank you, Clare.

Clare Morin:

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