COVID-19: EMERGENCY FMLA AND PAID SICK LEAVE

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Affected employers must be prepared to implement the Act’s leave programs on or before April 2, 2020 through December 31, 2020.

Employers subject to the Emergency FMLA Act

• All employees of employers with fewer than 500 employees, regardless of the length of their tenure with their employer, are eligible for paid sick leave under the Emergency Paid Sick Leave Act.
• Note that employers with fewer that 25 employees

Reasons for Taking Paid Sick Leave

An eligible employee may take paid sick leave if he/she is unable to work (including telework) because:

1. The employee is subject to a federal, state, or local quarantine or isolation due to COVID-19;

2. A health care provider advised the employee to self-quarantine due to concerns related to COVID-19 (self-imposed quarantine without medical advice does not qualify under the Act);

3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;

4. The employee is caring for an individual who is either subject to a federal, state, or local quarantine or isolation due to COVID-19 or has been advised to self-quarantine due to concerns related to COVID-19;

5. The employee is caring for the employee’s child whose school has been closed or place of care is unavailable due to COVID-19 precautions; or

6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretaries of Treasury and Labor. The precise meaning of this sixth reason will be clarified by the Secretary of Health and Human Services.

Employee Benefits

• Full-time employees receive 80 hours of paid sick leave.

• Part-time employees receive the equivalent of the number of hours they would work, on average, during a two-week period. There is a separate method for calculating the benefit for part-time employees whose schedules vary widely from week to week.

• For qualifying reasons 1, 2, and 3 (above), eligible employees will receive paid sick leave at their regular rate, except that in no event shall the amount paid exceed $511 per day and $5,110 in total.

• For qualifying reasons 4, 5, and 6 (above), eligible employees will receive paid sick leave at two-thirds of their regular rate, except that in no event shall the amount paid exceed $200 per day and $2,000 total.

Employer’s Existing Paid Leave Agreements
An employer may not require an employee to use other paid leave provided by the employer before using the paid sick time provided under the Emergency FMLA.

Employee Notice Requirement
After the first workday an employee receives paid sick time, an employer may require the employee to follow “reasonable notice procedures” in order to continue receiving paid sick time.

Employee Restoration Rights
Employers will be required to restore employees to their position after expiration of their leave. However, employers with fewer than 25 employees are relieved of the obligation to restore an employee to his or her position if all the following four conditions are met:

• The employee took leave for a “qualifying need related to a public emergency”;

• The position that the employee held no longer exists due to economic conditions or other changes of the employer caused by the public health emergency;

• The employer makes reasonable efforts to restore the employee to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment; and

• If the employer is unable to restore the employee’s employment to an equivalent position, then the employer must contact the employee within a 1-year period beginning on the date the FMLA leave concludes if an equivalent position eventually becomes available within that 1-year time period.

Employers Prohibitions
Employers may not discharge, discipline, or discriminate against any employee who (a) takes paid sick leave or (b) has filed a complaint or proceeding or testified in any such proceeding related to the benefits and protections provided this bill. Employers who violate the paid sick leave requirements or retaliation shall be subject to civil penalties under the Fair Labor Standards Act

Payroll Tax Credit for Employers
The bill provides a refundable tax credit worth 100 percent of qualified public health emergency leave wages and qualified paid sick leave wages paid by an employer for each calendar quarter through the end of 2020. The tax credit is allowed against the tax imposed under the employer portion of Social Security and Railroad Retirement payroll taxes.

If you have questions regarding compliance with these new legal requirements for either expanded FMLA rights or paid sick leave, please contact one of our employment lawyers at 216-348-1700.