Coronavirus Emergency Paid Sick Leave & FMLA Expansion

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act into law to address the Coronavirus outbreak. The new legislation expands the federal Family and Medical Leave Act (FMLA) and provides an emergency paid sick leave requirement that will impact many employers across the United States. The relevant provisions are discussed below.

Emergency Paid Sick Leave

The law requires that private-sector employers with fewer than 500 employees (and public employers) provide up to two weeks of paid sick leave to an employee who 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 because of COVID-19;
  3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. the employee is caring for an individual subject or advised to quarantine or isolation;
  5. the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
  6. the employee is experiencing substantially similar conditions as specified by the secretary of Health and Human Services, in consultation with the secretaries of Labor and Treasury.

The law allows the Secretary of Labor to issue regulations exempting small businesses with fewer than 50 employees when such paid sick leave requirements would jeopardize the viability of the business. The Secretary of Labor may also exclude certain health care providers and emergency responders from such paid sick leave requirements by allowing them to opt-out.

Full-time employees are entitled to 80 hours of paid sick leave. Part-time employees, on the other hand, are entitled to the number of hours that such employees work, on average, over a two-week period. Thus, if a part-time employee is regularly scheduled to work an average of 20 hours per week, the part-time employee would be entitled to 40 hours of paid sick leave under the law.

The law limits an employer’s requirement of paid leave to $511 per day ($5,110 in the aggregate) where leave is taken for reasons (1), (2), and (3) noted above (generally, an employee’s own illness or quarantine); and $200 per day ($2,000 in the aggregate) where leave is taken for reasons (4), (5), or (6) (care for others or school closures).

The law includes a prohibition on retaliating against any employee who takes leave in accordance with the new law. The law further provides that the failure to pay required sick leave will be treated as a failure to pay minimum wages in violation of the Fair Labor Standards Act.

Emergency Family and Medical Leave

The law requires that private-sector employers with fewer than 500 employees (and public employers) provide up to 12 weeks of job-protected, partially paid FMLA leave for a “qualifying need related to a public health emergency” to employees who have been employed for at least 30 days. The law also allows the Secretary of Labor to issue regulations exempting small businesses with fewer than 50 employees when such requirements would “jeopardize the viability of the business as a going concern.”

This “qualifying need” is limited only to situations in which an employee is unable to work (or telework) due to a need to take care of the employee’s child (under 18 years of age) due to an emergency with respect to COVID-19 as declared by a federal, state, or local authority:

  • if the school or place of care has been closed; or
  • if the child care provider is unavailable.

For employees entitled to such leave, the first 10 days may be unpaid. An employee can choose to use any accrued vacation, PTO, or sick leave, but an employer may not require an employee to do so.

The remainder of the FMLA leave, however, is required to be paid at no less than two-thirds of the employee’s regular rate for the number of hours the employee would otherwise be scheduled to work, subject to a cap of no more than $200 per day and $10,000 in the aggregate.

This FMLA leave must be job-protected, meaning that the employer must restore the employee to his or her prior position (or an equivalent position) upon expiration of the leave. However, employers with fewer than 25 employees will not be subject to the reinstatement provisions if the employee’s position no longer exists due to economic conditions or other changes in operating conditions of the employer caused by the COVID-19 pandemic.

The Secretary of Labor may also exclude certain health care providers and emergency responders from the definition of employees eligible to take such FMLA leave.

The law will take effect not later than 15 days after its enactment, and is set to expire on December 31, 2020.

Contact your SFSS&W attorney if you need have any questions relating to these new requirements or any other workplace challenges associated with the COVID-19 pandemic.

Millicent N. Sanchez ext. 8203 msanchez@swerdlowlaw.com
Janet I. Swerdlow ext. 8202 jswerdlow@swerdlowlaw.com
David A. Wimmer ext. 8201 dwimmer@swerdlowlaw.com
Emily G. Camastra ext. 8213 ecamastra@swerdlowlaw.com
Meghan E. O’Kane ext. 8204 mokane@swerdlowlaw.com
Lori M. Yankelevits ext. 8205 lyankelevits@swerdlowlaw.com
Karen E. Rhodes ext. 8206 krhodes@swerdlowlaw.com
Allison Musante ext. 8207 amusante@swerdlowlaw.com

 

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