Alert – Congress Passes Emergency Leave Laws

Volume: 19 | Issue: 7

March 19, 2020

In response to the COVID-19 national emergency, Congress has passed the Families First Coronavirus Response Act. While this Act provides a variety of relief measures, we write to explain two important matters that many employers need to immediately address — a temporary expansion of the Family and Medical Leave Act (FMLA) and emergency paid sick leave that affect all employers with fewer than 500 employees. Congress has provided tax credits for employers subject to these new laws.

Please note that there are many unanswered questions about these laws. KZA’s attorneys are available to assist you in navigating these new requirements.

The Emergency Family and Medical Leave Expansion Act passed in the Families First Coronavirus Response Act amends the FMLA to add 12 weeks of “public health emergency leave.” There are substantial differences to this type of FMLA which is available only during a 1-year period beginning April 2 and ending on December 31, 2020.

Who is covered: Any employer with fewer than 500 employees is required to provide public health emergency FMLA. Public health emergency leave is available to any individual who has been employed for at least 30 days without regard to how many hours the employee has worked.

The Secretary of Labor has the authority to issue regulations for good cause to exclude certain health care providers and emergency responders from the definition of eligible employee and to exempt small businesses with fewer than 50 employees from providing public health emergency leave “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”

Paid leave substitution: The first 10 days of public health emergency leave can be unpaid; an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for this period of unpaid leave. After the first 10 days, the employer must provide paid leave in an amount that is not less than two-thirds of the employee’s regular rate of pay (as determined pursuant to the Fair Labor Standards Act) in accord with the number of hours the employee would otherwise be normally scheduled to work. In no event shall such paid leave exceed $200.00 per day and $10,000 in the
aggregate.

• Job restoration: Traditional FMLA job restoration rights apply to most employers covered by public health emergency FMLA. Employers with fewer than 25 employees are not subject to job restoration obligations if: the position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions that affect employment and are caused by the public health emergency during the period
  of leave; and
• the employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced (with equivalent employment benefits, pay, and other terms and conditions of employment), or, if such efforts fail, makes reasonable efforts during a 1-year period to recall the employee if an equivalent position becomes available.

Emergency Paid Sick Leave Act

The Families First Coronavirus Response Act also includes the Emergency Paid Sick Leave Act which requires many employers to provide 2-weeks of paid sick time for employees who are unable to work or telework because of COVID-19. This law is effective only from April 2 to December 31, 2020.

Who is covered: The law covers public employers and private employers with fewer than 500 employees. Employees are entitled to paid sick time regardless of how long they have been employed.

The Secretary of Labor is permitted to issue regulations excluding certain health care providers and emergency responders from the definition of employee or allowing the employer of such employees to opt out and exempting small businesses with fewer than 50 employees from the paid sick time requirement “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”

How much time is available: Full-time employees are entitled to 80 hours of paid sick time. A part-time employee is entitled to the number of hours that he/she works, on average, over a 2-week period. Unused sick time does not carry over to another year.

Reasons for sick time: An employee is immediately entitled to paid sick time if he/she is unable to work (or telework) because:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical  diagnosis.
4. The employee is caring for an individual who is subject to the circumstances described in paragraphs 1 or 2 above.
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child-care provider of such son or daughter is unavailable, due to COVID-19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Compensation rules: To calculate the amount paid to employees for sick time, the employer should use the greater of the employee’s regular rate of pay (as determined under the Fair Labor Standards Act) or the minimum wage rate unless the employee is caring for a family member under the reasons set forth in paragraphs 4, 5, or 6 above. In these circumstances, the employer must only pay two-thirds of the employee’s regular rate of pay.

There are also caps on how much an employer must pay. For sick time used because of reasons 1, 2, or 3 above, an employer’s payment is capped at $511 per day and $5,110 in the aggregate. For sick time used because of reasons 4, 5, or 6 above, an employer’s payment is capped at $200 per day and $2,000 in the aggregate.