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Monkeypox On the Rise: Review of Paid Sick PHE Provisions

Deborah Tam, CPP  

Deborah Tam, CPP  

On August 4, 2022, U.S. Department of Health and Human Services Secretary Xavier Becerra announced that he would be declaring the monkeypox virus a public health emergency (PHE). The CDC reported there are 10,768 cases of monkeypox as of August 11, 2022. So far, only Wyoming has no reported cases.

It feels like déjà vu when the coronavirus (COVID-19) pandemic is still ongoing.

Now is a good time to revisit some of the PHE provisions of state paid sick leave laws.

Supplemental Public Health Emergency (PHE) Leave

Some states have laws that require the provision of supplemental COVID-19 paid sick leave. Such leave could be used to obtain a vaccination, deal with side effects, for self-isolation and quarantine, or deal with closures of the workplace or the school or daycare their child attends. However, many such provisions were COVID-19 specific and did not apply to all PHEs.

Colorado

Colorado’s paid sick leave law, “Healthy Families and Workplaces Act” (HFWA) requires employers to provide up to 80 hours of additional paid leave during a declared PHE. Supplemental PHE leave may be used for: (1) the employee’s self-isolation or quarantine or to care for a family member in isolation or quarantine, (2) treatment or preventative care for a communicable disease, (3) the care for a family member who is in isolation or needs care, (4) the closure of an employee’s or family member’s school or place of care, or (5) the inability to work due to increased risk to a communicable disease. Recently issued guidance clarifies that the 80 hours of leave is not per year but per PHE. The Colorado Department of Labor and Employment (CDLE) has updated its webpage to clarify that state law requires supplemental paid leave for a federal public health emergency that is declared a “highly fatal infectious agent.” Because current evidence does not demonstrate the current strain of monkeypox as “highly fatal,” employers are not required to provide PHE leave for monkeypox. However, regular accrued paid leave may be used for monkeypox-related reasons.

State and local paid sick leave laws

14 states and Washington D.C. currently have paid sick leave laws on the books with a number of local jurisdictions. While these paid sick leave provisions can be broadly interpreted to require time off for an employee to obtain preventative care as well time off for illness, some states and localities, during the COVID-19 pandemic, included general provisions where paid sick time may be used for specified purposes during a PHE while not requiring additional supplemental paid leave.

Arizona

  • Under Ariz. Rev. Stat. Ann. § 23-373, an employee may use paid sick leave due to a PHE that orders the closure of the workplace or an employee’s child’s school or place of care, or to care for oneself or a family member when it has been determined by the health authorities or by a health care provider that the employee’s or family member’s presence in the community may jeopardize the health of others because exposure to a communicable disease, regardless if the employee or family member has actually contracted the communicable disease.

California

  • San Diego. The city’s paid sick leave ordinance allows paid sick time to be used during a PHE when the workplace is closed or when a school or childcare provider is closed, and an employee must provide care to a child.
  • San Francisco. A ballot initiative was approved by voters that provides paid PHE leave, effective October 1, 2022 (see Payoll Update, 07/14/2022). Private employers with more than 100 employees worldwide would be required to provide paid PHE leave that can be used when: (1) the employee or family member is unable to work due to a recommendation or health order related to an infectious disease; (2) the employee or family member experiences symptoms of the disease or tests positive and (3) the employee primarily works outdoors and has a heart or lung disease, has respiratory problems, is pregnant, or is at least 60 years old when a Spare the Air Alert is in effect.

Illinois

  • Chicago and Cook County. Both Chicago and Cook County Ordinances permit the use of paid sick leave when an employer’s place of business or an employee’s child’s school or place of care is closed due to a PHE.

Maryland

  • Montgomery County. The paid sick leave ordinance allows an employee to use paid sick leave when an employer’s place of business or an employee’s child’s school or place of care is closed due to a PHE or to care for a family member if a health official or health care provider has determined that the family member’s presence in the community would jeopardize the health of others because of the family member’s exposure to a communicable disease.

Michigan

  • Under the state’s paid sick leave (Mich. Comp. Laws Ann. § 408.964), an employee may take paid sick leave due to the closure of the employee’s primary workplace or the school or place of care of the employee’s child. Paid sick leave may also be used due to an absence related to the employee’s or their family member’s exposure to a communicable disease that would jeopardize the health of others.

Note: A recent court ruling impacts paid sick leave provisions, however, the provisions regarding its use during a PHE are not impacted.

Minnesota

  • Bloomington. The City’s paid sick leave ordinance does not take effect until July 1, 2023. However, it does include a provision that allows an employee to take paid sick leave during a PHE for a workplace closure or school or place of care closure where the employee must care for a family member.
  • Minneapolis. The Minneapolis Sick and Safe Time Ordinance allows an employee to use paid sick leave during a PHE when the employee’s workplace is closed or when the employee’s family member’s school or place of care is closed.
  • St. Paul. An employee is permitted to use paid sick time for the closure of the employee’s workplace or a family member’s school or place of care by order of a public official to limit exposure to an infectious agent, biological toxin, hazardous material or other PHE.

New Jersey

  • Paid sick leave (N.J. Rev. Stat. § 34:11D-3) may be used when an employee is unable to work due to the closure of the employee’s workplace, or the school or place of care of a child of the employee by order of a public official or because of a state of emergency declared by the Governor, due to an epidemic or other PHE, that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others, or employee is required isolate or quarantine or cares for a family member who must isolate or quarantine due to suspected exposure of a communicable disease.

New York

  • New York City. The Earned Safe and Sick Time Act allows workers to use paid sick time when an employee’s place of business is closed or to care for a child whose school or place of care has been closed due to a PHE
  • Westchester County. The Earned Sick Leave Law for Domestic Workers permits employees to use paid sick leave due to: (1) the closure of the employee’s workplace; (2) a domestic worker’s child’s school or daycare is closed due to a PHE; or (3) public health authorities have determined the worker or family member’s presence in the community may jeopardize the health of others due to exposure regardless if the disease has been actually contracted.

Oregon

The state’s paid sick leave law (Or. Rev. Stat. § 653.616) allows an employee to use paid sick time during a PHE for the closure of the workplace or a child’s school or care provider. Paid sick leave may also be used if a public health authority or health care provider determines the presence of the employee or family member would jeopardize the health of others.

Pennsylvania

  • Allegheny County. The paid sick leave ordinance permits the use of paid sick leave due to the closure of an employee’s place of business or needs to care for a child whose school or place of care has been closed because of a PHE or need to care for a family member when health authorities or health care provider have determined the family member’s exposure to a communicable disease creates a risk to others, whether or not the family member has contracted the disease.
  • Pittsburgh. Under the City’s paid sick leave ordinance, an employee is allowed to take paid sick leave during a PHE for a workplace closure or school or place of care closure where the employee must care for a family member. Paid sick time may be taken if health authorities determine that a family member’s presence in the community would jeopardize the health of others due to exposure to a communicable disease.

Rhode Island

Under R.I. Gen. Laws § 28-57-6, an employee may use paid sick time when the workplace or the employee’s child’s school or place of care is closed, or health authorities have determined that the employee’s or family member’s exposure to a communicable disease may jeopardize the community.

Vermont

An employee may use paid sick leave (Vt. Stat. Ann. 21 § 483) for an employee to care for a family member due to a school or place of care closing for a public health or safety reason.

Washington

  • Under Wash. Rev. Code § 49.46.210, an employee may use paid sick time when the employee’s place of business or the employee’s child’s school or place of care has been closed by order of a public official for any health-related reason.
  • Seattle. Under the City’s ordinance, paid safe time may be used when the employee’s place of business has been closed by order of a public official, for any health-related reason, to limit exposure to an infectious agent, biological toxin, or hazardous material, when the employee’s place of business for a Tier 3 employer has reduced operations or closed for any health- or safety-related reason; or when the employee’s family member’s school or place of care has been closed.
  • An employee may use paid sick time due to the closure of the workplace or employee’s school or place of care during a PHE (Tacoma Municipal Code Sec. 18.10.030).

Checkpoint Edge delivers continuing coverage on state and local paid sick requirements and is monitoring the current monkeypox public health emergency for any new developments.

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