Steven Cesare, Ph.D.
Recently-passed legislation related to the Coronavirus has a significant impact on all companies with fewer than 500 employees. The Emergency FMLA Expansion Act and the Emergency Paid Sick Leave Act will be implemented on April 2nd with a sunset of December 31st. The following is a brief summary of both Acts.
EMERGENCY FMLA EXPANSION ACT
This legislation provides 12 weeks of job-protected leave of absence related to Coronavirus, when an employee is unable to work because s/he needs to care for a child if the child’s school is closed, or childcare provider is unavailable, due to a public health emergency. With minor exceptions, this job protection applies to any employee who has worked for an employer for at least 30 days.
The first 10 days of Emergency FMLA leave is unpaid. During this time, employees may elect to substitute accrued paid leave (e.g., vacation, PTO, or sick leave) to cover some or all of the 10 days. However, after the 10-day period, the employer must pay employees at two-thirds the employee’s regular rate for the number of hours the employee would normally be scheduled. Paid Emergency FMLA leave is capped at $200 per day and $10,000 in the aggregate per employee. Employers with 25 or more employees must return the employee to the same or equivalent position after taking Emergency FMLA leave. Employers with 24 or fewer employees are not required to return an employee to the same or equivalent position if the employee’s position no longer exists due to an economic downturn or other changes in operating conditions caused by a public health emergency during the period of leave.
EMERGENCY PAID SICK LEAVE ACT
This legislation requires employers to provide full-time employees with 80 hours of paid sick leave, while part-time employees must receive the average number of hours worked over a 2-week period. Once granted, the employee may use paid sick leave immediately. This paid sick leave does not carry-over into next year. Employees may take paid sick leave if the employee is:
- Subject to a federal, state or local quarantine or isolation order related to COVID-19;
- Advised by a health care provider to self-quarantine due to COVID-19 concerns;
- Experiencing COVID-19 symptoms and seeking medical diagnosis;
- Caring for an individual (not limited to family members) subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
- Caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
- 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.
The amount of pay depends of the reason for sick leave.
- If leave is taken for reasons (a), (b), or (c) above:
- Employees are paid their regular pay rate not to exceed $511 per day and $5,110 in aggregate.
- If leave is taken for reasons (d), (e), or (f) above:
- Employees are paid two-thirds their regular pay rate not to exceed $200 per day and $2,000 in the aggregate.
The employer may not: (a) require the employee to search for or find a replacement to cover the hours the employee will be out on sick leave, (b) require an employee to use other paid leave options the employer provides before using federal paid sick leave, or (c) discharge, discipline, discriminate, or in any other manner retaliate against any employee who takes sick leave, filed a complaint or instituted a proceeding against the employer related to sick leave, or testifies in any such proceeding.
The Secretary of Labor has the discretion to exempt healthcare providers and emergency responders from taking emergency leave, as well as businesses with fewer than 50 employees if either Act would “jeopardize the viability” of their business. Also, employers are entitled to a refundable tax credit equal to 100% of the qualified family leave wages and/or qualified sick leave wages paid for each calendar quarter.
If you have any questions or comments about this topic or anything else related to human resources, simply call me at (760) 685-3800.
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