Employment Law Update: Federal Paid Leave Provision to Take Effect on April 2, 2020

Updated: 3/19/2020

employment law

On March 18, 2020, Congress passed Families First Coronavirus Response Act (the “Act”) which will provide temporary assistance to employees and businesses experiencing coronavirus interruptions. The Act becomes effective April 2, 2020, which is 15 days after the President signed the bill into law. The bill contains two key provisions for employers and employees.  One is an emergency paid sick leave provision that applies generally to all employers who have fewer than 500 employees.  The other provision is an emergency expansion of the Family Medical Leave Act (“FMLA”) in order to provide up to 80 hours of paid leave to parents who must remain at home to care for a child due to the closing of schools, or non-availability of the child’s caregiver.  The Act provides for employers to seek exemptions depending on the circumstances and the number of employees the employer has.

Here are two of the Act’s key provisions:

Paid Sick Leave

Private employers who have fewer than 500 employees, and all government employers are required to provide full time employees at least 80 hours of paid sick leave. Paid sick leave can be used for the following reasons:

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to coronavirus;
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to coronavirus;
(3) The employee is experiencing coronavirus symptoms and seeking a medical diagnosis;
(4) The employee is caring for an individual who is subject to an order as described in reason (1) or has been advised as described in reason (2).
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to the coronavirus.
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Employees who go on paid sick leave for reasons (1), (2), or (3) will be paid at their regular rate of pay. Employees who use their leave for reasons (4), (5), or (6) will be paid at two-thirds the employee’s regular rate of pay. In no event, however, shall the paid sick leave exceed $511.00 per day and $5,110.00 in the aggregate for reasons (1), (2), or (3), or $200.00 per day and $2,000.00 in the aggregate for reasons (4), (5), or (6).

Full-time employees are entitled to two weeks (80 hours) and part-time employees are entitled to the typical number of hours they work in a typical two-week period.  There are calculations for varying schedules. 

Employers cannot require employees to use their PTO before they begin to use Paid Sick Leave under this section of the Act.  Employers with existing sick leave policies must provide paid sick leave under the Act in addition to the existing leave available.

In additional to these requirements, the Paid Sick Leave provision requires employers to post notices of the Act.  Model Notices will be available next week on Department of Labor website at https://www.dol.gov/general/topics/posters

Family and Medical Leave Act Expansion for Parents of Minor Children

Employers with less than 500 employees, as well as all government employers, must provide up to 12 weeks of paid family and medical leave for employees unable to work (or telework),  limited to employees who are a parent and need for leave work in order to care for their child, if the child’s school or place of care has been closed or if the child care provider is unavailable, due to the coronavirus. While the original version of the bill provided for leave to other caregivers, including grandparents, those provisions were not part of the final bill. 

The first 10 days of the leave may be unpaid under FMLA (Paid Sick Leave under the above provisions or some other paid leave provision under the Employer’s leave policy may be available to cover this period of time). Employees must be permitted to utilize PTO to cover this initial 10-day period. After the initial 10-day period, the employee will be paid not less than two-thirds of the employee’s regular rate of pay based on the number of regular hours the employee worked. In no event, however, shall the paid leave exceed $200.00 per day and $10,000.00 in the aggregate.

Employers are required to reinstate employees, upon return from leave, to their same or similar position unless the following conditions are met:

  • The employer has fewer than 25 employees;
  • The position held by the employee no longer exists due to economic or other operating conditions that affect employment and are caused by the public health condition;
  • The employer attempts to restore the employee to a similar position;
  • The attempts to restore to a similar position fail, and the employer contacts the employee if such a position becomes available.

The Act provides for the exclusion of certain health care providers and emergency responders from providing extended FMLA, as well as small businesses with fewer than 50 employees if providing the leave “would jeopardize the viability of the business.”

The FMLA prohibition against retaliation against any employee who takes protected leave under this section remains in place for these new provisions.

Questions

A number of questions or open issues remain regarding employer requirements.  These may be clarified later by the forthcoming regulations.  These questions and include:

  • Employee certification or documentation, if any, that an Employer may require for leave to care for a child if a child’s school has been closed or alternative childcare provider is unavailable.
  • Whether employers need to revise their current FMLA policies to incorporate these temporary new benefits.
  • Whether an Employer’s Short-term Disability Policy can be coordinated with payments required under the expanded FMLA leave.
  • Whether employees may qualify for any of these payments due to leave that the employee has taken prior to the presumptive effective date on April 2, 2020.  It is not expected that any retroactive application of these provisions will occur.  Other types of benefits, such as state unemployment benefits, may need to be utilized.
  • Whether employees who are laid off before the effective date of the Act are entitled to the expanded FMLA leave pay.

We will issue updates as we are made aware of them.  If you have any questions regarding paid leave or expanded FMLA benefits, or any other question related to employment issues, for you or your business, we are ready to assist. Please contact Matt Stokely or Kristina Curry at Pickrel, Schaeffer, and Ebeling at (937) 223-1130, or via email at mstokely@pselaw.com or kcurry@pselaw.com

AUTHOR: Kristina Curry
kcurry@pselaw.com