On March 18, 2020, the Families First Coronavirus Response Act (H.R. 6201) (the Act) was signed into law. This article discusses the Family and Medical Leave Act (FMLA) and Paid Sick Leave provisions related to the COVID-19 public health emergency.
Due to the immense effect this Act may have on small businesses, I have provided a thorough review of relevant questions.
- When do the COVID-19 related FMLA and Paid Sick Leave provisions take effect?
Within 15 days of enactment, or by April 1, 2020.
- What employers are subject to the new COVID-19 related FMLA and Paid Sick Leave requirements?
With certain exceptions (see #3 and #4 below), the Act applies to private employers with fewer than 500 employees company-wide and certain public employers.
Employers with 500 or more employees are not obligated to provide COVID-19 related FMLA leave or Paid Sick Leave. But such employers still must comply with obligations under state or local Paid Sick Leave or paid family. They must also comply with medical leave laws and administer sick or paid time off or paid leave provided under company policies or collective bargaining agreements.
- Can employers of an employee who is a healthcare provider or emergency responder opt out?
Yes. An employer of an employee who is a healthcare provider or an emergency responder may elect to exclude the employee from the application of the FMLA and Paid Sick Leave provisions.
- Is there a small business exemption?
Possibly, if the U.S. Department of Labor (DOL) issues new regulations. The Act grants the DOL the authority to issue regulations that exempt small businesses with fewer than 50 employees when the provision would jeopardize the viability of the business as a going concern. Regulations are currently being written, and should be enacted shortly.
- Who pays for COVID-19 related paid FMLA and Paid Sick Leave?
Employers pay but will receive a corresponding tax credit.
- What about employees who work under multi-employer bargaining agreements?
An employer who is a signatory to a multi-employer collective bargaining agreement may fulfill its obligations relative to the COVID-19 related FMLA and Paid Sick Leave provisions (consistent with bargaining obligations and the collective bargaining agreement) by making contributions to a multi-employer fund, plan, or program based on what paid leave each of its employees is entitled to while working under the agreement. The fund, plan, or program must enable employees to receive pay for COVID-19 paid FMLA and Paid Sick Leave.
7. Are the COVID-19 related FMLA and Paid Sick Leave Benefits in addition to Washington State and local leave laws (e.g., Seattle)?
Yes. The COVID-19 related FMLA and Paid Sick Leave benefits in no way diminish the rights and benefits available under federal, state, or local law.
8. What if an employee is temporarily laid-off or placed on standby status?
The Act does not specifically address standby status. Contact us to discuss the facts specific to your situation.
EMERGENCY FMLA EXPANSION PROVISIONS:
- How does the Act expand FMLA for COVID-19?
The Act amends the FMLA to allow an employee who is unable to work (or telework) to take leave due to a need to care for the employee’s son or daughter (under 18 years of age) if the child’s elementary or secondary school or place of care has been closed, or the childcare provider is unavailable, due to a “public health emergency” (defined below).
- What is a “public health emergency?”
An emergency concerning COVID-19 declared by a federal, state, or local authority.
- To what extent is COVID-19 related FMLA leave paid and unpaid?
When FMLA leave is needed due to a COVID-19 related school or day care closure, the employer can provide the first 10 days of leave unpaid. Subsequent absences for this reason must be paid at 2/3 the employee’s regular rate of pay.
The Act includes a cap of $200 a day and $10,000 in aggregate. [Please note these changes to FMLA should be read in conjunction with the new Emergency Paid Sick Leave provisions.]
- Can an employee elect to substitute any accrued vacation leave, personal leave, or medical/sick leave for the unpaid COVID-19 related FMLA leave?
- Which employees are eligible for COVID-19 related FMLA leave?
Employees who have been employed for at least 30 calendar days are entitled to COVID-19 related FMLA leave. The usual FMLA requirements that the employee has been employed for a year, worked for at least 1,250 hours, and works in a location where there are 50 employees within a 75-mile radius do not apply to COVID-19 related FMLA leave.
- Is COVID-19 related FMLA leave job protected?
Yes, the Act offers job protection. However, the FMLA’s requirement that an employee be restored to the same or equivalent position after leave does not apply to an employer with fewer than 25 employees if the employee’s position no longer exists due to economic conditions or other changes in the employer’s operations that affect employment and are caused by the public health crisis during the period of leave.
The employer must make reasonable efforts to restore the employee to the same or an equivalent position. If the reasonable efforts fail, the employer must make efforts to contact the employee and reinstate the employee if an equivalent position becomes available within one year beginning on the earlier of (a) the date on which the qualifying need related to a public health emergency concludes, or (b) the date that is 12 weeks after the date the employee’s leave started.
- What notice is required?
Employees must provide notice of the necessity of COVID-19 related FMLA leave “as is practicable.”
EMERGENCY PAID SICK LEAVE PROVISIONS:
- When are employees entitled to additional COVID-19 related Paid Sick Leave?
A covered employer must provide Paid Sick Leave to the extent that the employee is unable to work (or telework) for any of the following reasons:
- 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 healthcare provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to an order as described in paragraph (1) or has been advised as described in paragraph (2).
- The employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of the son or daughter is unavailable, due to COVID-19 precautions.
- 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.
2. How much COVID-19 related Paid Sick Leave does the Act provide?
80 hours of Paid Sick Leave for full-time employees (or the equivalent of the average number of hours over two weeks for part-time employees).
- Which employees are eligible for COVID-19 related Paid Sick Leave?
All employees of covered employers.
- What compensation is an employee entitled to for COVID-10 related Paid Sick Leave?
Employees are entitled to Paid Sick Leave paid at the employees’ regular rate, but capped as follows: Paid Sick Leave shall not exceed
- $511 per day and $5,110 in the aggregate for a use described in reasons (1), (2), or (3) (see C.1 above).
- and $200 per day and $2,000 in the aggregate for a use described in reasons (4), (5), or (6) (see C.1 above).
- What notice is required?
After the first workday (or portion thereof) an employee receives COVID-19 related Paid Sick Leave, an employer may require the employee to follow reasonable notice procedures to continue receiving such Paid Sick Leave.
- Does unused COVID-19 related Paid Sick Leave carryover?
No. COVID-19 related Paid Sick Leave does not carry over from one year to the next.
- Can an employer require an employee who takes COVID-19 related Paid Sick Leave to find a replacement worker?
No. An employer may not require, as a condition of providing COVID-19 related Paid Sick Leave, that the employee search for or find a replacement employee to cover the hours during which the employee is using Paid Sick Lime.
- Must an employer pay out unused COVID-19 related Paid Sick Leave if the employee separates from employment?
This law will potentially have an extreme impact on all small businesses. We will continue to monitor this law and update with any new information. (March 19, 2020)