Feds Mandate Paid Leave Amid COVID-19 Pandemic

 

Family First Coronavirus Response Act

 

FMLA

Applies to all private employers with fewer than 500 employees and all public employers.

Qualifying need for leave

• • • Adds a new qualifying reason for taking FMLA—“because of a qualifying need related to a public health emergency” through December 31, 2020.
    • “Qualifying need for leave” means the employee is unable to work or telework due to a need for leave to care for the son or daughter under 18 if such employee of the school or place of care has been closed, or if the child care provider of such son or daughter is unavailable, due to public health emergency.
    • Makes more employees eligible for the new “public health emergency” qualifier by allowing employees who have only been employed for 30 calendar days to be eligible for this particular leave (rather than having been employed for 12 months).
    • This Act gives the Secretary of Labor the authority to issue Regulations to exclude from the requirements of this Act private employers with fewer than 50 employees “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” In other words, employers with fewer than 50 employees who would not have their business operations jeopardized by offering this leave will be required to provide this leave.  What is meant by “jeopardize the viability of the business as a going concern” is not defined in the Act and will have to be explained in Regulations at a later date.
    • Private employers with 50-499 employees and all public employers must comply with this Act regardless of whether “the imposition of these requirements would jeopardize the viability of the business as a going concern.”
    • Employees who need this leave are required to give employers as much notice as is practicable.

Paid versus unpaid leave under FMLA

• • • The first 10 days for which an employee takes leave under the qualifying reason listed above may consist of unpaid leave, although the employee can use paid leave (vacation, personal, vacation, etc).
    • The employer shall provide paid leave for each day of leave that the employee takes after the initial 10 days.
    • Paid leave shall not exceed $200 a day, or $10,000 in the aggregate.
    • When calculated how much paid leave is owed, employers are to provide an amount that is not less than 2/3rds of the employees’ regular rate of pay (not base rate of pay, as distinguished in the FLSA). Employees must be paid for the number of hours that the employee would normally be scheduled to work.

Restoration to Position

• • • Employees are entitled to the same reinstatement rights under this Act as they would be entitled to under other FMLA-qualifying reasons for leave. That is, an employee must be reinstated to his or her former position or an equivalent position (ie. a virtually identical position).
    • The restoration to position provision of the Act does not apply to employers who have fewer than 25 employees if, the employee takes leave as described above, but the position the employee held when the leave started does not exist due to economic conditions or other operating conditions of the employer that affect employment and are caused by the public health emergency.
    • The employer is required to make reasonable efforts to return the employee to an equivalent position with equivalent benefits, pay and other terms and conditions of employment.
    • If the reasonable efforts cannot return the employee to an equivalent position, then the employer must contact the employee within one year if an equivalent position becomes available (similar to a recall list).
      • The one year clock starts on the earlier of the date on which the qualifying need related to a public health emergency concludes, or the date that is 12 weeks after date on which the employee’s FMLA leave for this public health emergency commences.

Special rule for health care providers and emergency responders

• • • An employer of a health care provider or emergency responder may elect to exclude such employee from the application of provisions of these changes to the FMLA.

EMERGENCY PAID SICK LEAVE

Applies to all private employers with fewer than 500 employees and all public employers.

Employees’ eligibility for paid sick leave

• • • Employees are eligible for paid sick leave under this Act regardless of the length of their employment.
    • The DOL is directed to issue additional guidelines on the calculation of paid sick time within 15 days of the enactment of the Act. However, given the language of the Act as currently written, we advise employers to provide this paid sick leave in addition to sick leave that was available to the employee prior to the enactment of this Act.
    • An employer is required to provide each employee paid sick time at the employee’s full regular rate of pay, to the extent the employee is unable to work or telework due to a need for leave because:
      • The employee is subject to a federal, state, or local quarantine or isolation because of COVID-19;
      • The employee has been advised by a health care provider to self-quarantine because of COVID-19; or
      • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
    • An employer is required to provide each employee paid sick time at 2/3rds of the employee’s regular rate of pay, to the extent the employee is unable to work or telework due to a need for leave because:
      • The employee is caring for an individual who is subject to a quarantine/isolation or has been advised by a health care provider to self-quarantine because of a COVID-19; or
      • The employee is caring for his/her son or daughter because the school or place of care of the son/daughter has been closed or the day care provider of the son or daughter is unavailable because of COVID-19 precautions.

Special rule for health care providers and emergency responders

• • • An employer of a health care provider or emergency responder may elect to exclude those employees from the application of this Emergency Paid Sick Leave Act.

Availability of paid sick leave

• • • Full-time employees are entitled to up to 80 hours of paid sick leave.
    • Part-time employees are entitled to the number of hours equal to the number of hours that such employee works, on average, over a 2-week period.
    • Paid sick leave is based on the employee’s regular compensation but is capped at $511 per day (or $5,100 in the aggregate) for employees who fall in the first three categories above and is capped at $200 (or $2,000 in the aggregate) per day for those in the two care-related categories above.
    • Paid sick time given under this Act does not carry over from one year to the next.
    • Paid sick leave shall terminate when the need upon the termination of the need for sick leave.
    • An employer may not require, as a condition of providing sick leave under this Act, that the employee who will use the sick leave find a replacement employee to cover the hours during which the employee is using paid sick time.
    • An employee is permitted to use the sick leave time granted under this Act prior to using other paid leave. In other words, an employer may not require an employee to use other paid leave prior to using the sick leave available under this Act.
    • After the first work day that an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue to receive paid sick time.

Miscellaneous

• • • Employers are required to post a Notice of this available leave which will be provided by the Secretary of Labor not more than 7 days after the enactment of this Act.
    • Employers are prohibited from discharging, disciplining or discriminating against employees who take leave available to them under this Act or who has filed a complaint related to this Act, or will/has testified in a proceeding related to the enforcement of this Act.
    • Failure to provide leave as set forth in this Act is a violation of the FLSA. An employer in violation of this Act is subject to the same penalties as they would be subject to under the FLSA (double-damages, attorney fees, etc.)
    • The requirements under this Act expire December 31, 2020.

This Act takes effect no later than 15 days after enacted.
Thus, this Act will become effective no later than April 2, 2020.

 

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