Paid Leave Benefits to Employees during the Covid-19 Crisis

On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) was signed into law, marking the second major legislative initiative to address COVID-19 (the first was signed on March 6 and provided emergency funding relief for domestic and global efforts). Click the link for a summary table of key provisions of the FFCRA, which addresses the domestic outbreak, including paid sick leave, insurance coverage of coronavirus testing, nutrition assistance, and unemployment benefits.

Now the Emergency Family and Medical Leave Expansion Act (FEMLEA) requires certain employers to expand upon the Family and Medical Leave Act (FMLA) for some employees so that they may take paid time off work.

WHO IS INCLUDED

·     Private sector employers with fewer than 500 employees

·     Government employers with 1 or more employees

·     The Department of Labor may exempt small business with fewer than 50 employees when the viability of the business is threatened; the Department will issue regulations on this exemption

·     Employees who have been employed at the business for at least 30 calendar days

·     Employers may choose to exclude emergency first responders and health care providers

HOW EMPLOYEES QUALIFY

·     If an employee needs to care for a family member under quarantine/isolation

·     If an employee needs to care for a minor child whose school or childcare is unavailable as a result of the COVID-19 pandemic

·     If the employee is diagnosed with coronavirus

·     An employee DOES NOT qualify if they are quarantined because they were exposed to coronavirus but are not sick with the virus

SPECIFICS FOR QUALIFYING EMPLOYEES

·     Employees will not be paid for the first 10 work days, unless the employee uses vacation, personal, or sick leave, which is not required

·     After 10 days, the employee is paid 2/3 of regular pay for the remainder of leave, with a cap of $200/day and $10,000 in total for the leave period, which can be up to 12 weeks

·     The 12-week leave period is reduced if the employee took an FMLA leave within the same administrative year

·     The FMLA’s job protection and anti-retaliation apply to EFMLEA, except for employers with fewer than 25 employees and when the employee’s job no longer exits due to the circumstances following the public health emergency

EMERGENCY PAID SICK LEAVE ACT

The Emergency Paid Sick Leave Act requires that employers provide all full-time employees with up to 80 hours of paid sick leave and pro-rated hours of paid sick leave for part-time employees.

WHO IS INCLUDED

·     Private sector employers with fewer than 500 employees

·     Government employers with 1 or more employees

·     The Department of Labor may exempt small businesses with fewer than 50 employees when the viability of the business is threatened; the Department will issue regulations on this exemption

·     NO minimum term of employment

·     Employers may choose to exclude emergency first responders and health care providers

HOW EMPLOYEES QUALIFY

·     Employee is subject to mandated quarantine or isolation

·     Employee has been advised by a health care provider to quarantine

·     Employee is experiencing symptoms of coronavirus and seeks medical attention

·     Employee is caring for a minor child whose school or childcare is unavailable

·     Employee is experiencing a similar condition as identified by the Secretary of Health and Human Services

SPECIFICS FOR QUALIFYING EMPLOYEES

·     Full-time employees are eligible for 80 hours

·     Part-time employees are eligible for hours based upon the amount of time that they regularly work over a two-week period

·     For employees seeking pay due to mandated or health-care-provider suggested quarantine, or for those seeking medical attention due to COVID-19 symptoms, pay is equal to 100% of their hourly rate, if that pay is more than minimum wage, and capped at $511/day and $5,110 in total for the leave period

·     For all other reasons, pay is equal to 2/3 of regular pay, if that pay is more than minimum wage, with a cap of $200/day and $2,000 in total for the leave period

·     Employees must give notice to employers before using Emergency Paid Sick Leave

·     Employers can’t ask that employees use other paid leave before using Emergency Paid Sick Leave

·     Employers must post notice to employees about their right to use Emergency Paid Sick Leave; the Secretary of Labor will draft a model notice that employers can use

TAX CREDITS

Employers can seek tax credits related to Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave.

Failing to comply with the requirements set by the Emergency Family & Medical Leave Expansion Act and Emergency Paid Sick Leave Act can be costly to an employer. The above details are meant to serve only as guidance on the new law, and it is not comprehensive of all situations. We encourage employers and employees to read the full bill and/or reach out to your attorney with any questions or concerns.