On March 18, 2020, the U. S. Senate passed HR 6201, a bill passed in the House of Representatives on March 16, 2020. This bill enacts a number of emergency relief measures related to the COVID-19 pandemic. This legal alert focuses on two aspects of the bill: the “Emergency Family and Medical Leave Expansion Act,” Division C of the bill, and the “Emergency Paid Sick Leave Act,” Division E of the bill. These two divisions of HR 6201 impose significant new requirements on employers to provide employees with paid leave benefits for absences occasioned by COVID-19 related circumstances.
Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave Act (Act) provides employees with paid sick leave benefits for absences occasioned by COVID-19 related conditions. Key features of the Act are as follows:
- The Act defines an “Employee” by borrowing the definition of that term found in the federal Fair Labor and Standards Act (FLSA). The FLSA defines “employee” as “any individual employed by an employer.” In other words, the definition is broad and comprehensive and includes all employees of the employer, whether full- or part-time.
- The Act defines “Employer” as (a) for private sector employers, “any entity or individual with fewer than 500 employees” and (b) for public sector employers, “any entity or individual that employs 1 or more employees.”
- Conditions Under Which An Employee Is Entitled to Paid Sick Leave: An employee is entitled to paid sick leave due to the inability to work or telework because of any of the following conditions:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
- The employee is caring for an individual who is subject to an order described in item 1 above or has received advice as described in item 2 above.
- The employee is caring for a son or daughter because the son’s or daughter’s school or place of care has been closed due to COVID-19 precautions.
- The employee is experiencing “any other substantially similar conditions” as specified by the Secretary of Health and Human Services.
- Amount of Paid Sick Leave Available: Eighty (80) hours for full-time employees. Part-time employees are eligible for paid sick leave hours in an amount equal to the average number of hours they work over a two (2) week period.
- Cap on Amount of Sick Leave Pay: Paid sick leave is to be calculated based on the employee’s regular rate of pay or the applicable federal, state, or local minimum wage, whichever is greater, but in no event shall the amount of sick leave pay exceed $511 per day and $5,110 in the aggregate for leave taken for items numbers 1, 2, and 3 above and $200 per day and $2,000 in the aggregate for leave taken for items 4, 5, and 6 above.
- Sequencing: Employees are entitled to utilize the paid sick leave benefit provided by the Act before they can be required to utilize any other paid leave benefit (vacation, sick leave, PTO) provided by the employer.
- Effective Dates of Act: The Act takes effect fifteen (15) days from its final passage (March 17, 2020) and sunsets on December 31, 2020.
- Prohibited Actions: Employers are prohibited from taking any adverse employment action against an employee due to the employee’s utilization of the benefits provided by the Act.
- Penalties: An employer who violates the provisions of the Act will be deemed to have violated the minimum wage requirements of the FLSA and will be subject to unpaid wages, liquidated damages, and penalties as provided by the FLSA for such a violation.
- Posting: Employers are required to post notice of the Act in the workplace. A model notice will be provided by the Secretary of Labor within seven (7) days of enactment of the Act.
Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act (Act) amends the federal Family and Medical Leave Act (FMLA) to address a limited set of COVD-19 related conditions. Key features of this Act are as follows:
- Revised FMLA Definition of “Employee”: The FMLA currently defines an eligible employee as an individual who (1) has been employed by the employer for twelve (12) months; (2) has worked at least One Thousand Two Hundred Fifty (1,250) hours in the twelve (12)-month period immediately preceding a leave request, and (3) works at a location at which fifty (50) or more employees are employed or within seventy five (75) miles of such a location. This Act revises that definition such that an eligible employee is now defined as an individual who has been employed for at least thirty (30) calendar days by the employer from whom FMLA leave is requested.
- Revised FMLA Definition of “Covered Employer”: The FMLA currently defines a covered employer as an individual or entity that employs fifty (50) or more employees for twenty (20) or more workweeks in this or the preceding calendar year. This Act revises that definition such that a covered employer is now defined as an individual or entity employing fewer than 500 employees.
- New Basis for Taking FMLA Leave: In addition to the qualifying circumstances for taking leave already found in the FMLA, this Act adds an additional basis for such leave identified in the Act as a “qualifying need related to a public health emergency.” That phrase is defined in this Act as a situation in which an “employee is unable to work (or telework) due to a need for leave to care for a son or daughter under eighteen (18) years of age because the son’s or daughter’s school or place of care has been closed due to a public health emergency related to COVID-19.”
- Paid/Unpaid Leave: Leave taken due to a “qualifying need related to a public health emergency” as defined in the paragraph above, is unpaid for the first ten (10) days of the leave. Thereafter, the leave is paid. The paid leave to which the employee is entitled is an amount that is not less than two-thirds the employee’s regular rate of pay multiplied by the number of hours the employee would normally have worked absent the “qualifying need related to a public health emergency,” but in no event shall the amount of paid leave exceed $200 per day and $10,000 in the aggregate.
- Coordination With Other Paid Leave Benefits: An employee who takes leave due to a “qualifying need related to a public health emergency,” can elect to use, but cannot be compelled to use, other paid leave benefits (vacation, sick, PTO) provided by the employer.
- Job Restoration Rights: An employer with fewer than twenty five (25) employees is not required to restore an employee who takes leave for a “qualifying need related to a public health emergency” to the employee’s same job and same benefits if the following conditions are met:
- The position held by the employee no longer exists due to economic conditions or other changes in the employer’s operating conditions resulting from the public health emergency.
- The employer makes a reasonable effort to restore the employee to an equivalent position with equivalent pay and benefits.
- If the reasonable efforts to restore the employee are unsuccessful, the employer must make reasonable efforts to contact the employee regarding any equivalent position that becomes open during the one-year period beginning on the earlier of the date on which the “qualifying need related to a public health emergency” ends or the date that is twelve (12) weeks after the date on which the employee’s leave commences.
- Effective Dates of Act: The Act takes effect fifteen days from its final passage (March 17, 2020) and sunsets on December 31, 2020.
There is one other related provision contained in HR 6201. Division G of the bill provides employers with certain tax credits for paid sick leave and paid family and medical leave as described above. The tax treatment of these payments is beyond the scope of this current Legal Alert.
The impact of COVID-19 continues to be unprecedented. The two Acts discussed above are just one aspect of the impact this pandemic is having. The attorneys at Kronick are committed to assisting our clients in dealing with the many challenges created by the current health crisis.
Questions
If you have any questions concerning this Legal Alert, please contact the following from our office or the attorney with whom you normally consult.
David Tyra
dtyra@kmtg.com | 916.321.4594