In 2017, Arizona passed the Fair Wages and Healthy Families Act, which requires all Arizona employers to provide paid sick leave (PSL) to their employees, whether they work full-time or part-time or on a permanent, temporary, or occasional basis. (A number of other US states have passed paid sick leave laws.) Employers with fewer than 15 employees (including full-time, part-time and temporary employees) are required to provide at least 24 hours of annual PSL, whereas employers with 15 or more employees are required to provide at least 40 hours of annual PSL. Employers may award PSL hours in a lump sum at the start of the year, or employees may accrue PSL at a rate of no less than one hour for every 30 hours worked up to the statutory cap or a more generous accrual cap in employers’ discretion. Although there are provisions requiring rollover of unused hours, employers can limit annual PSL usage at 24 or 40 hours. Employers are prohibited from retaliating against employees for exercising their protected leave rights, and the law presumes that a retaliatory action taken against an employee within 90 days of the employee’s using PSL is retaliatory unless the employer can prove otherwise.
The 2019 novel coronavirus (COVID-19) is at the forefront of employers’ minds, and many are bracing for employee absences and illnesses in the coming weeks. Following are some tips to ensure compliance with the Fair Wages and Healthy Families Act (the “Act”) during this period.
- Employees may use PSL as it is accrued, but employers have the option of delaying use of PSL by newly-hired employees until after their ninetieth (90th) day of employment. In light of the severity of the virus and encouragement by public health authorities to practice “social distancing,” particularly after potential exposure and after infection, employers may elect to dispense with the 90-day waiting period. Additionally, because employees exposed to the virus are encouraged to self-isolate for at least 14 calendar days, employers may use their discretion to lend PSL to an employee in advance of accrual, which option is specifically contemplated by the Act.
- Employees may use accrued PSL for their own mental or physical illness, injury or health condition, or if they need medical diagnosis, care, or treatment, or when they need preventive medical care. Consequently, if an employee believes he or she has been exposed to the virus and needs time off to be tested, time off to obtain a diagnosis would fall within the scope of the Act. Likewise, if the employee develops symptoms and requires a period of absence to recover from the virus, he or she can use accrued PSL for such purpose.
- Employees also may use accrued PSL to care for a family member who is ill, or who needs medical diagnosis, care or treatment, or preventive medical care. “Family member” is defined very broadly under the Act, and includes, among others, biological, foster, and adoptive parents and stepparents; parents-in-law; grandparents; spouses and domestic partners; biological, adopted, or foster children, stepchildren, or legal wards, regardless of age; children of domestic partners; a child to whom the employee stands in loco parentis or for whom the employee did stand in loco parentis when the individual was a minor; grandchildren; siblings and stepsiblings; and any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. Accordingly, employees may use accrued PSL to take family members (as broadly defined) for testing, treatment, and doctor’s visits, and to care for them at home if they are ill.
- Many schools and places of businesses are closing temporarily to prevent the spread of the virus. Arizona PSL may be used when an employee’s place of business has been closed “by order of a public official due to a public health emergency,” or when an employee needs to care for a child “whose school or place of care has been closed by order of a public official due to a public health emergency.” The Industrial Commission of Arizona has issued regulations defining a “public health emergency” as a “state of emergency declared by the” Arizona “governor in which there is an occurrence or imminent threat of an illness or health condition caused by bioterrorism, an epidemic or pandemic disease or a highly fatal infectious agent or biological toxin and that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability.” See Admin. C. R20-5-1202(24). On March 11, 2020, Arizona Governor Doug Ducey declared a public health emergency in Arizona due to the coronavirus, but neither the governor nor the Arizona Department of Health Services has (as of this date) ordered the closure of businesses or schools. If businesses and schools are ultimately ordered closed due to the state of public emergency, employees would be entitled to use accrued PSL for such absences.
- Employees may use PSL in the event that local health authorities or a health care provider declares that the employee’s (or an employee’s family member’s) presence in the community may jeopardize the health of others because of their exposure to a communicable disease, whether or not the employee or family member has contracted the communicable disease. Employees who have been instructed by public health authorities or by their health care provider to isolate themselves because they have been exposed to the coronavirus – whether or not they are symptomatic – may use PSL during the period of self-isolation. Likewise, if the employee’s family member has been instructed by public health authorities or a health care provider to self-isolate due to exposure, employees may use PSL to care for the family member.
- The Act does not require any formal notice requirement. Employees can request PSL in person, via email, via text message, “or by any other means acceptable to the employer.” Although the request ordinarily should include the expected duration of the absence, this is only required “when possible,” and the current long waits for testing kits and public health authorities’ evolving understanding of the virus’ incubation period may make it impossible to state clearly how long an employee may need to use PSL. Employers are urged to be flexible in light of current conditions.
- Despite present fears regarding the virus, the Act only allows employers to require reasonable documentation that PSL has been used for a covered purpose when the absence is for three or more consecutive work days, and, even then, the Act does not permit employers to require a full disclosure of the employee’s medical condition or course of treatment. Therefore, if an employee uses PSL to obtain coronavirus testing, which may require only a brief absence, on its face the Act states that employers may not require a doctor’s note that the PSL has been used for a covered purpose. That said, in an effort to balance public health concerns with the statute, employers may consider asking the employee to work from home, or extend paid leave to the employee, until test results confirm whether the employee is positive for the virus before allowing the employee to return to the workplace.
- All medical information obtained about the employee or the employee’s family member in the course of determining PSL eligibility and entitlement must be kept confidential and not disclosed except to the affected employee or with the employee’s permission. Despite current concerns about contagion, PSL may still be used for a wide variety of issues other than coronavirus testing and treatment and employers should not assume that requests are for this purpose, or require disclosure of details regarding the employee’s health as a condition of providing earned PSL.
The Act is just one of employers’ many obligations when it comes to determining employees’ entitlement to time off. For example, an employee requesting to use PSL for an extended (multi-day) period due to their own health condition or that of their parent, spouse, or child that renders them incapacitated and in need of inpatient care or a continuing course of treatment by a health care provider may also qualify for time off under the federal Family and Medical Leave Act (FMLA). Employers should listen for cues that might trigger FMLA notice requirements, and also consider the availability of leaves of absence under non-FMLA medical or personal leave policies or as reasonable accommodations under the Americans with Disabilities Act. Employers with questions regarding their obligations to provide time off to employees during this pandemic are urged to confer with counsel.