IN 2021, YOUR EMPLOYER MAY NOT OFFER SICK LEAVE FOR COVID-19

By Molly Walker.

The beginning of 2021 was met with a continual rise in cases of COVID-19 across the United States, and Arizona was no exception. According to the Arizona Department of Health Services, there were 758,404 active COVID-19 cases as of January 31, 2021—a 14.3% positivity rate. Among the positive cases, 52,764 were hospitalized cases. In the latter half of January, cases began to decline, but the virus remains prevalent. Despite the persistence of COVID-19 in the new year, some government measures surrounding the virus ended in 2020. One such measure is the Families First Coronavirus Response Act (FFCRA) which put in place Emergency Paid Sick Leave (EPSL) and Expanded Family Medical Leave (EFML) for some workers. The FFCRA expired on December 31, 2020.

Current State of COVID-19 Related Leave in Arizona

The Arizona Department of Administration Human Resources Division (ADOA HRD) has provided new guidance to state employees since the FFCRA’s expiration on December 31, 2020. There is no provision of the FFCRA that allows for “grandfathering” in leave provided by the Act, so even those employees using EPSL or EFML had to convert to another form of sick leave beginning on January 1, 2021. ADOA HRD instructs that Arizona employees who must be absent from work for COVID-19 related reasons are to use the Notification of Need for Leave for COVID-19 Related Reasons. In addition to completing the recommended form, ADOA HRD advises that employees notify their Human Resources (HR) Office as soon as they are able and work with their HR office to determine what type of leave is appropriate for the employee’s situation. Arizona is one of fifteen states with paid sick leave and covered benefits outside of federal legislation. Arizona’s State Personnel System Rule R2-5A-B603 allows up to 40 hours of family sick leave per calendar year. Per ADOA HRD, the 40 hour limit has been temporarily waived for absences taken to care for a family member related to COVID-19. However, there is no legislation which extends or amends FFCRA to provide the type of sick leave in the Act. Therefore, options available to employees for COVID-19 related leave will vary by employer. Employees should reach out to their respective HR representatives to learn what options are available.

The practical implications of FFCRA’s expiration and AZ’s issued guidance are plainly illustrated by teachers’ sick leave options in Cave Creek. Mid-January, Cave Creek Unified School District Superintendent emailed the District’s teachers notifying them that if they are exposed to COVID-19 and must stay home, they will have to use their personal sick leave. The instruction to District teachers was that “IF . . . [the teacher was] potentially exposed within 6 feet of a person with COVID-19 for a cumulative total of 15 minutes or more over a 24-hour period OR had physical contact with a person with COVID-19 and [the teacher] do[es] not have any symptoms, [the teacher] may choose to remain at work.” Rather than requiring isolation in accordance with the CDC’s guidelines for isolation post-exposure, the District told teachers that they “MAY” choose to quarantine, but that “[t]here is no longer a ‘work from home option.’” Teachers working for Tucson Unified School District are experiencing a similar predicament. Teachers must use their own sick leave or go without pay if they miss work due to COVID-19. The FFCRA required employers to provide up to 10 days of paid sick leave for COVID-19 related leave and provided federal government reimbursement to employers. Without the FFCRA, it would cost Tucson Unified School District $11.6 million to cover emergency paid sick leave for all qualifying employees.

However, not all schools are in the same boat. Some school districts are continuing to fund COVID-19 related sick leave for their employees. Sunnyside, Flowing Wells, Sahurita, and Marana school districts are funding paid leave, up to 10 days, for COVID-related illness and quarantine through March 31, 2021. Additionally, perhaps the need for COVID-19 related leave will become less pressing in schools in the coming weeks and months since school employees are included in Phase 1B of Arizona’s COVID-19 vaccination plan. Access to the vaccine could minimize the need for COVID-19 related leave. It remains unclear, however, when other, non-school, employees previously covered by the FFCRA will have access to the vaccine. So many employees will likely still miss FFCRA leave.

Potential Future Federal Actions

One potential replacement for the leave guaranteed to some employees by FFCRA is the Family and Medical Insurance Leave Act (FAMILY Act). Representative Rosa Delauro (D-Conn.) has indicated she intends to reintroduce the FAMILY Act in the 117th Congress. The FAMILY Act would guarantee partial income for up to 12 weeks for employees to care for sick family members or newborns.  Another piece of legislation that may be reintroduced is the Healthy Families Act. That legislation would allow employees of businesses with more than fifteen employees to accrue seven paid-sick days per year paid for by their employer.

"COVID-19 in Washington DC" by dmbosstone is licensed under CC BY-NC-ND 2.0

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By Molly Walker.

J.D. Candidate, 2022

Molly is a staff writer and second-year law student from Watertown, South Dakota. She is interested in litigation and health law. Prior to law school, Molly earned her business degree from the Carlson School of Management at the University of Minnesota–go Gophers! She’s a huge Taylor Swift fan and enjoys completing DIY craft projects in her free time.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.