Effective April 2nd: Employers Must Provide Paid Sick Leave and Paid FMLA Leave Related to COVID-19

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (HR 6201) into enactment. These provisions are to take effect no later than April 2, 2020 and will expire on December 31, 2020. They cover employers with fewer than 500 employees including public and non-profit employers. The Secretary of Labor may enact regulations to exclude health care providers and emergency responders as well as exempt small businesses with fewer than 50 employees when providing leave would jeopardize the viability of the business as a going concern. Covered employers must post and provide notice to employees about their rights under the Act, which the Department of Labor shall provide along with further rules and guidance within the next two weeks.

Emergency Paid Sick Leave Act

Covered employers must provide paid sick leave to any employee who is unable to work or telework because:

  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine because of COVID-19;
  • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  • The employee is caring for an individual subject or advised to quarantine or isolation;
  • 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
  • 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.

Full-time employees are entitled to up to 80 hours at their regular rate of pay up to $511 per day ($5,110 in total) unless leave is to care for a family member, in which case leave is paid at two-thirds the employee’s regular rate up to $200 per day ($2,000 in total). Part-time employees are entitled to the number of hours that the employee works, on average, over a 2-week period subject to the dollar limits above.

This leave is in addition to any accrued and paid leave currently provided by the employer. Employers may not require the employee to first use accrued paid leave under another paid leave policy, and any paid leave provided by an employer before the law is effective cannot be credited against the employee’s paid leave entitlement under the Act. Employers are not permitted to change existing paid leave policies to avoid the Act’s provisions. However, an employee’s right to take paid sick leave ends after they return from their leave or after the Act sunsets on December 31, 2020.

Emergency Family and Medical Leave Expansion Act

The Act expands FMLA for COVID-19 related purposes (doing away with the 50-employee threshold) and allows any employee who has been employed for at least 30 calendar days by the employer to take such leave. Leave may be taken to:

  • Follow requirements or recommendations to quarantine due to exposure or symptoms of coronavirus;
  • To care for a family member who is quarantined due to exposure or symptoms;
  • To care for a child of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to the coronavirus.

Following an initial 10 days of unpaid leave (employees may still elect to use any accrued paid leave like PTO or paid sick leave including the leave benefit under the Emergency Sick Leave Act), employers must pay employees at a rate of 2/3 the employee’s regular rate working a normal schedule, not to exceed $200 per day and $10,000 in total. Employers may not require employees to use accrued paid leave.

All other FMLA leave types remain unpaid. Job protections apply unless the employer has fewer than 25 employees and the employee’s position no longer exists due to economic downturn or other circumstances caused by a public health emergency during the emergency FMLA period and the employee cannot be placed in an equivalent position after a year of reasonable efforts.
Retaliation.

The Act includes anti-retaliation protections and will penalize employers for a failure to provide the paid leave or a failure to pay wages under FLSA. Employers with fewer than 50 employees are exempt from civil FMLA damages in an FMLA lawsuit.

Employer Tax Credits

To assist employers who must provide the paid sick leave or paid FMLA leave under the statute, a refundable tax credit is available equal to 100 percent of qualified paid sick leave or paid FMLA leave wages required to be paid by the Emergency Family and Medical Leave Expansion Act. The tax credit is allowed against the tax imposed by section 3111(a) (the employer portion of Social Security taxes). If the credit exceeds the employer’s total liability under section 3111(a) for all employees for any calendar quarter, the excess credit is refundable to the employer.

Unemployment Grants

The Act also provides $1 billion in grants to states for emergency unemployment insurance. To receive access to the second portion of the grant, states must, among other things, make it easier for individuals to obtain unemployment compensation by waiving work search requirements and waiting periods.

If you have any questions about this act and how your company should specifically comply, please do not hesitate to contact me at rensley@sbhlegal.com or (503) 595-6112 .