Emergency FMLA and Paid Sick Leave

March 19, 2020 by Walcheske & Luzi, LLC

The Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act: What You Need to Know

Yesterday, President Trump signed both bills into law. This means that both laws will go into effect in 15 days, or on April 2, 2020. Employers need to prepare for compliance with both Emergency Leave Acts now. 

First, the Emergency Family and Medical Leave Expansion Act. The Act amends the Family and Medical Leave Act in the following ways, through December 31, 2020: 

• Applies to employers with 500 or less employees – employers who previously had no FMLA responsibilities because they employed less than 50 employees are subject to this!
• Employers of employees of health care providers and emergency responders can exclude such employees from the Act
• Employers with 50 or less employees may be exempt if adherence to the Act “would jeopardize the viability of the business as a going concern” (i.e., could put the employer out of business or otherwise suffer significant financial hardship)
• The Act is temporarily expanded to include leave for a “public health emergency” (“an emergency with respect to COVID-19 declared by a Federal, State, or local authority” – aka, “now”)
• Qualifying reasons for leave under the Act are if the employee is unable to work (or telework) due to “need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”
  1. As a clarification, “child care provider” “means a provider who receives compensation for providing child care services on a regular basis,” and “school” applies to elementary and second schools
  2. Leave is still limited to a total of 12 weeks
• Employees must only have been employed at a covered employer for 30 calendar days to be eligible
• Employees who take FMLA leave under the Act do not have to be paid for the first ten (10) days of leave, but can substitute vacation, PTO, sick time, etc. to continue receiving income (the same as under the “normal” FMLA we are all used to)
• After the first ten (10) days of leave under the Act, the second ten (10) days must be paid. During this period, the employer must pay the employee no less than two-thirds (2/3) their regular rate of pay for the same number of hours the employee usually or customarily works per workweek, not to exceed $200 per day and $10,000 total. 
  1. If the employee typically works a wide range of or unpredictable hours, employer should take the average of hours worked over the employee’s prior six (6) months of employment to determine the amount to be paid. 
  2. If the employee did not work during that period, then pay should be based on the reasonable number of hours the employee was expected to work upon hire or the average number of hours the employee is expected to work per day. 
• Employers will receive a quarterly tax credit for paid FMLA leave provided pursuant to the Act, unless they elect to have it taxed as normal wages. From quarter-to-quarter, the amount of credit received is capped at 10 days more than what was reported in the prior quarter.
• Where an employee’s need for leave under the Act is foreseeable, the employee is still responsible for providing notice to the employer (assuming that is practicable) 
• If the position the employee held when his/her leave started no longer exists when he/she can return due to economic conditions or other operating changes caused by the public health emergency, then employers are expected to make “reasonable efforts” to restore the employee to an equivalent position. If one does not exist, employers are expected to make “reasonable efforts” to contact the employee if one becomes available during the “contact period.”
  1. The “contact period” is a period of one year from the beginning of the earlier of: (1) the date the employee’s need for leave ends; or (2) 12 weeks after the employee commences leave. 
• Employers who violate these requirements will be found to have violate the FMLA (damages include back pay, liquidated damages, and attorneys’ fees and costs)

Second, the Emergency Paid Sick Leave Act, which is effective April 2, 2020 through December 31, 2020:

• “Covered employers” includes any person or entity engaged in commerce or that affects commerce that: (1) if a private employer, employs less than 500 employees; (2) if a public employer, employs more than 1 person; or (3) is a “public agency” as defined under the Fair Labor Standards Act (FLSA)
• Employers of health care providers and emergency responders can choose to exempt such employees from coverage under the Act.
• Employers with 50 or less employees may be exempt if adherence to the Act “would jeopardize the viability of the business as a going concern” (i.e., could put the employer out of business or otherwise suffer significant financial hardship)
• All other employees are immediately eligible, regardless of tenure
• Requires employers to provide paid sick time to employees who are unable to work (or telework) due to a need for leave because:
  1. The employee is subject to quarantine due to COVID-19
  2. The employee was advised by a health care provider to self-quarantine due to COVID-19
  3. The employee is symptomatic of COVID-19 and is seeking a medical diagnosis
  4. The employee is caring for someone subject to 1 or 2, above
  5. The employee is caring for his/her son or daughter if the child’s school or child care provider is closed or if the child care provider is otherwise unavailable due to COVID-19 concerns
  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 Secretary of Labor” 
• Full-time employees unable to work for such reasons are entitled to 80 hours of paid sick leave 
• Part-time employees are entitled to the average number of hours worked over a two-week period 
• If an employees’ hours widely vary or are unpredictable, they are calculated in the same fashion as the Emergency Family and Medical Leave Expansion Act
• If the leave is for reasons 1-3, above, employees are entitled to compensation at a rate not less than the greater of the employee’s regular rate of pay or minimum wage, up to a max of $511 per day, $5,110 total
• If the leave is for reasons 4-6, above, employees are entitled to compensation at a rate not less than two-thirds (2/3) of the greater of the employee’s regular rate of pay or minimum wage, up to a max of $200 per day, $2,000 total
• Employers will receive a quarterly tax credit for paid sick leave provided pursuant to the Act, unless they elect to have it taxed as normal wages. From quarter-to-quarter, the amount of credit received is capped at 10 days more than what was reported in the prior quarter.
• Paid sick leave under the Act does not carry over 
• Paid sick leave under the Act must be used before an employee uses other accumulated forms of leave, such as employer-provided sick leave or PTO
• Employers cannot require employees eligible for paid sick leave under the Act to find coverage or replacement for their shifts
• After sick leave under the Act commences, employers can require employees to follow normal notice practices/procedures to demonstrate continued need for the leave
• Makes it unlawful for employers to take adverse actions against employees for taking leave under the Act or who take adverse actions against employees in retaliation for complaining or filing actions relating to the Act (similar to other discriminations laws)
• Employers who violate the Act by failing to provide paid sick leave are deemed to have violated FLSA by failing to pay the minimum wage under the FLSA (damages include unpaid wages, liquidated damages, and attorneys’ fees and costs)
• Employers who unlawfully terminate employees under the Act are also deemed to have violated the FLSA (damages include back pay, liquidated damages, and attorneys’ fees and costs)

As always, if you have questions, please feel free to contact us directly.