by Michelle Ferber, Julie Ann Giammona and Jennifer Lucas
On Wednesday, March 18, 2020, the President signed the Families First Coronavirus Response Act (“Act”) which becomes effective April 2, 2020. The Act expands certain provisions of the Family and Medical Leave Act (“FMLA”) and creates the Emergency Paid Sick Leave Act (“EPSLA”) in an attempt to provide relief to employees amidst the COVID-19 pandemic.
EXPANSION OF FMLA
The expanded FMLA leave requirements specify that all businesses with less than 500 employees must provide 12 weeks leave to employees who have worked at least 30 days for any “qualifying need related to a public health emergency.” Notably, the “qualifying need” is defined as any situation where an employee must care for a minor child (and thus cannot work) because the child’s school has been closed or is otherwise unavailable due to a public health emergency. This language is a significant departure from earlier versions of the bill and limits the availability of the 12 weeks of partially paid leave to situations related to school and childcare closures and not the employee’s own illness.”
The first 10 days of the leave is unpaid. An employee may choose, but is not required, to use accrued sick or vacation pay to cover these first 10 days. Alternatively, as will be discussed below, an employee may use the Emergency Paid Sick Leave Act time of 10 days or 80 hours for this initial unpaid period. The subsequent FMLA leave must be paid at 2/3 of the employee’s regular rate of pay with a cap of $200 per day and a total sum of $10,000.
The Act does provide that the Secretary of Labor may, but is not required to, issue regulations that: a) allow businesses with fewer than 50 employees to seek a waiver if compliance would jeopardize the viability of the business; and, b) exclude certain health care and emergency responder workers. When, or if, such regulations will be issued is unknown.
These amendments expire on December 31, 2020.
EMERGENCY PAID SICK LEAVE ACT
The EPSLA requires that all businesses with less than 500 employees provide 10 days or 80 hours of paid sick time to any full-time employee (part-time employees are entitled to the typical number of hours they work in a typical two-week period) not able to work for one of the following six reasons: (1) the employee is subject to a quarantine order related to COVID-19; (2) the employee must quarantine on the advice of a health care provider because of COVID-19; (3) the employee experiences symptoms of COVID-19 and is seeking a medical diagnosis; (4) the employee is caring for an individual subject to or advised to quarantine; (5) the employee is caring for a minor child whose school or place of care is closed, or unavailable, due to COVID-19 precautions; or (6) the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and The Treasury.
Notably, the EPSLA applies immediately upon hire to all employees, even if an employee has only worked one day. The EPLSA expires on December 31, 2020. Employers may not demand that employees use other paid leave before using EPSLA. If employers already have other sick leave policies in place (for example the annual 24-hour mandated sick time under California law), an employer must provide the EPSLA on top of, or in addition to, the existing leave.
An employer’s obligation to provide paid sick leave is limited to $511 per day ($5,110 in total) if leave is taken for reasons (1), (2), or (3) above (relating to the employee’s own illness or quarantine); and $200 per day ($2,000 in total) if leave is taken for reasons (4), (5), or (6) above (relating to care for others or school closures).
Like the FMLA amendments, the EPSLA provides that the Secretary of Labor may issue regulations that: a) allow businesses with fewer than 50 employees to seek a waiver if compliance would jeopardize the viability of the business; and, b) exclude certain health care and emergency responder workers.
Lastly, it is important to note that the EPSLA strictly prohibits retaliation against any employee exercising the right to take the leave and treats any employer failure to provide the paid leave as a violation of minimum wages in violation of the Fair Labor Standards Act.
To assist employers in funding the expanded FMLA requirements and the paid sick time under the EPSLA, employers may claim a 100% tax credit for all monies required and actually paid. However, the employer’s gross income will be increased by the amount of the credit.
As with any legislation, many questions remain unanswered. COVID-19 presents a uniquely fluid situation. Ferber Law will continue to keep you updated. We realize that both the expanded protections of the FMLA and the implementation of the EPSLA appear daunting and overwhelming. Many small employers may struggle to meet the various mandates. In these trying and unprecedented times Ferber Law remains your loyal advocate. Please contact us with your questions and concerns. Above all, stay well.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.