A Capehart Scatchard Blog

Are You Ready: Summary of Federal COVID-19 Leave Laws

By on April 7, 2020 in Legislation with 0 Comments

Editor: Sanmathi (Sanu) Dev, Esq.

Below is an article written by my colleagues, Ralph R. Smith, Esq., Co-Chair of our firm’s Labor & Employment Group, and Lara M. Ruggerio, Esq., a member of the firm’s Labor & Employment Group. The article summarizes two new federal leave laws dealing with employee work absences resulting from the COVID 19 crisis. If you wish to view additional articles and/or be kept up-to-date with labor & employment issues, visit our HR Resource blog by clicking here.

As of April 1, 2020, employers must now comply with the two new federal leave laws recently passed to deal with employee work absences resulting from the COVID 19 crisis. These laws, the Paid Emergency Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, impose new leave requirements upon employers that will remain in place until December 31, 2020. These laws are portions of the Families First Coronavirus Response Act (“FFCRA”). A summary of each of these provisions appears below to help you understand what these new compliance obligations for employers are so your workplace is prepared to deal with these upcoming expected leave requests.  For starters, your first step should be to update your leave policies to include an explanation of these two new leave laws. Secondly, you need to post in your workplace the notice document recently issued by the United States Department of Labor. (“USDOL”). Finally, you need to familiarize yourself with the details of these new leave obligations as are now explained below.    

PAID EMERGENCY SICK LEAVE ACT

The general purpose of this Act is to provide paid sick time to employees that are unable to work due to:

  • Quarantine or isolation relating to COVID-19
  • Self-quarantine ordered by a health care provider
  • Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis
  • Employee is caring for individual who is quarantined or is self-quarantined
  • Employee is caring for a son or daughter due to school or child care closure due to COVID-19 precautions
  • Employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor

The Paid Sick Leave Act applies to all public employers and private sector employees with less than 500 employees. Full time employees are entitled to eighty (80) hours of paid sick time. A part time employee should be paid the number of hours that the employee works on average over a two-week period.

There is a cap upon what employees are to be paid during this leave but, as a general rule, the employee is to receive required compensation of two-thirds of the amount of their usual pay.  However, in no case shall paid sick time exceed:

  • $511.00 per day (and $5,110.00 in the aggregate) if the employee is out due to:
    • Quarantine or isolation relating to COVID-19
    • Self-quarantine ordered by a health care provider
    • Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis
  • $200.00 per day (and $2,000.00 in the aggregate) if the employee is out due to:
    • Employee is caring for individual who is quarantined or is in self-quarantine
    • Employee is caring for a son or daughter due to school or child care closure due to COVID-19 precautions
    • Employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor

Employers are to receive a tax credit for payments made to employees under this law. Moreover, employees may opt to use other forms of paid leave instead of this leave but the employer cannot require that use.  

If you are a business with 50 or fewer employees, you may ask the DOL to exempt you from following this law if compliance will jeopardize the viability of the business as an on-going concern.  The United States Department of Labor recently issued a guidance on what an employer must show to meet these requirements to obtain a potential exemption. The Department of Labor also has the discretion to exclude health care providers and emergency responders from eligibility.

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

This new federal legislation expands eligibility for FMLA leave to accommodate employees who are unable to work or telework due to a need to care for a child under 18 years of age if school or daycare is closed due to a public health emergency. Private sector employers only need to comply with the Act if they have less than 500 employees. All public employers must comply with the Act. Employees who were eligible for FMLA as of April 1, 2020 are eligible for leave under the expansion. Employees are eligible to use this leave if they have worked for the employer for 30 calendar days.

The first ten days of this expanded family leave is unpaid. An employer may substitute paid time off or other sick time during this period, but an employer may not require an employee to do so. (If an employee qualifies for leave under the Emergency Paid Sick Leave Law he/she can substitute this leave for the first two unpaid weeks of emergency family leave.) After the first ten days, employees must be paid at a rate of no less than 2/3 of an employee’s usual rate of pay. However, this payment is capped at $200.00/day, not to exceed $10,000.00. Employers are entitled to a tax credit for any payments made to employees in compliance with this Act.

Consistent with traditional FMLA, the paid emergency leave is job protected. There are exceptions, however. Employers with less than 25 employees may be exempt. If an employee’s job no longer exists due to the coronavirus pandemic, an employer must make efforts to restore the employee to an equivalent position over a one year period.

Also, employees are subject to the usual rules on limitation of available FMLA time. Meaning that the expanded leave does not add any additional time for an employee who has already exhausted his/her available FMLA prior to the effective date of the emergency expansion law.

The USDOL has the discretion to exclude health care providers and emergency responders from eligibility. Moreover, if you are a business with 50 or fewer employees, you may ask the USDOL to exempt you from following this law if compliance will jeopardize the viability of the business as an on-going concern.  The USDOL recently issued guidance on what an employer must show to meet these requirements to obtain a potential exemption.

DOL ENFORCEMENT

Consistent with a U.S. Department of Labor Field Assistance Bulletin dated March 24, 2020, in an effort to enable public and private employers to come into compliance with the FFCRA, the USDOL has placed a moratorium on enforcement of the Act until April 17, 2020. The USDOL will not bring enforcement actions against any public or private employer provided that the employer has made reasonable, good faith efforts to comply with the Act. This moratorium applies to the entirety of the FFCRA, including the Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.            

If you have any questions about these expanded leaves or need advice on how to comply with leave requests, feel free to contact a member of the firm’s Labor and Employment department. We are still here assisting clients during these difficult times, and remain just an email or cell phone call away.

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Ralph R. Smith, III, Esq.

About the Author

About the Author:

Mr. Smith is Co-Chair of Capehart Scatchard's Labor & Employment Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitrations, drug testing, and employment related contract issues.

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