In response to the COVID-19 global pandemic, President Trump on Wednesday signed into law an emergency relief package (https://www.congress.gov/bill/116th-congress/house-bill/6201/text), which, among other things, provides paid leave to many American workers if they need to take time off work due to the coronavirus. The legislation becomes effective no later than 15 days after its enactment.
The emergency relief package amends the Family and Medical Leave Act of 1993 and creates “Public Health Emergency Leave.” Under the expanded FMLA, an employee can request leave for a “qualifying need related to a public health emergency.” Such a qualifying need includes an employee who is unable to work (or telework) due to a need to care for a child under the age of 18 whose school or daycare facility has closed. The emergency Act applies to government employees and those who work for companies with fewer than 500 employees. To be eligible, an employee must have worked for the employer for at least 30 days. The Act gives the Department of Labor authority to issue regulations exempting employers with fewer than 50 employees from the requirements of the Act when imposition of those requirements would “jeopardize the viability of the business.” The Department of Labor is expected to issue regulations to that effect shortly.
The first 10 days of an employee’s Public Health Emergency Leave is unpaid. After the initial 10-day period, the employer is required to provide paid leave for the remainder of eligible leave. Employees have the right to substitute any accrued, but unused, paid leave. During the paid leave, an employee is entitled to at least two-thirds of their regular rate of pay; however, “[i]n no event shall such paid leave exceed $200 per day and $10,000 in the aggregate.” Congressional leaders indicated that subsequent legislation will be passed to help employers pay for their obligations under the emergency relief package.
An employee returning from Public Health Emergency Leave is entitled to be restored to their same, or “equivalent,” position. These restoration rights do not apply to employees employed by an employer with fewer than 25 employees if certain conditions are met.
The emergency relief package also creates the “Emergency Paid Sick Leave Act.” Under this Act, employers with fewer than 500 employees are obligated to provide paid sick time to employees that are unable to work (or telework) because:
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
(4) The employee is caring for an individual who is subject to an order as described in (1) or has been advised as described in (2).
(5) The employee is caring for a child because the child’s school/daycare facility is closed due to COVID-19 precautions.
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
In no event shall an employee’s paid sick time exceed $511 per day and $5,110 in the aggregate for a use described in (1), (2), or (3), or $200 per day and $2,000 in the aggregate for a use described in (4), (5), or (6), above. An employee’s required compensation under the Act is the greater of the employee’s regular rate of pay or the applicable minimum wage. If an employee is caring for a family member per (4), (5), or (6), above, then the employee’s required compensation is two-thirds of the greater of the employee’s regular rate or the applicable minimum wage.
Employers of healthcare providers or emergency responders can elect to exclude those employees from receiving emergency paid sick leave.
Under the Act, full-time employees are entitled to up to 80 hours of paid sick leave. Part-time workers are entitled to a number of hours equal to the number of hours that the employee works, on average, over a two-week period. This emergency paid sick leave does not carry over from one year to the next.
Emergency paid sick leave is available to employees immediately upon the Act’s effective date; there is no requirement that the employee have worked for the employer for a certain number of days. Additionally, employers are prohibited from requiring employees to use other paid leave before the employee uses paid sick time provided under this Act. Employers are also prohibited from requiring employees to search for or find a replacement employee to cover the hours during which the employee is using paid sick time. Employers cannot retaliate against an employee that takes leave under the Act.
Congress has stated that more legislation will follow. Please contact us if you have questions regarding this evolving situation.
The content herein is based upon the law applicable at the time this email is being published. Due to frequent changes in the law, the content in this newsletter may not remain accurate or reliable. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in this newsletter without discussing your specific situation with a licensed attorney. Nothing within this newsletter creates an attorney-client relationship.