Legislation signed into law earlier this week has created two new federal paid leave requirements for employees who miss work due to a variety of coronavirus-related situations. Effective starting April 1, 2020, the new requirements apply to all employers with fewer than 500 employees.
New Type of FMLA Leave
The first new paid leave requirement comes in the form of an amendment to the Family and Medical Leave Act (FMLA). That 27-year old law is temporarily amended to allow employee to take up to 12 weeks of leave for coronavirus-related absences, much of it paid. Here are the key components of the new requirement:
- The new type of leave (with its accompanying FMLA protections) is available to any employee who has worked for an employer for as few as 30 days (the FMLA generally applies to those who have been employed at least 12 months).
- The leave is available only for absences resulting from a school closure that affects the employee’s child, and only if the employee is unable to work as a result.
- The first ten days of leave may be unpaid, but employees with other paid leave available to them should be allowed to use it. This includes the newly created Emergency Paid Sick Leave, discussed below.
- After the first ten days, the leave must be paid at a rate of no less than 2/3 of the employee’s regular rate for hours they would ordinarily be scheduled to work. This is capped at $200 per day and $10,000 overall.
- The legislation allows the Secretary of Labor to exempt small employers (those with fewer than 50 employees) from the requirements, but there is no indication yet on whether that will happen.
- Keep in mind that in spite of the narrow scope of this new leave entitlement, employees may also qualify for regular, unpaid FMLA if they or a family member miss work due to being ill with coronavirus. The regular definition of “serious health condition” would apply.
- Reportedly, there has been some speculation in legal circles that an employer may be able to avoid this type of FMLA by laying off or furloughing employees prior to the law’s effective date of April 1st. Employees would likely be entitled to unemployment compensation in this situation. Consult your attorney before taking any such action.
Emergency Paid Sick Leave
The legislation also includes a separate paid leave requirement – referred to as Paid Sick Time – which is not linked to the FMLA. This type of paid leave – which is more of a short-term requirement – requires employers to provide up to 80 hours of paid sick leave for both full- and part-time employees.
This type of paid leave is available when an employee:
- Is subject to a Federal, State, or local quarantine or isolation order (or advised by a health care provider to self-quarantine) in relation to COVID-19;
- Is experiencing symptoms of COVID-19 and seeking a medical diagnosis; or
- Is caring for an individual who is subject to a quarantine or isolation order or advised to self-quarantine;
- Is caring for a child due to the closing of the child’s school or daycare (or the unavailability of any other care provider) due to COVID-19.
For this type of leave, employers must pay employees their full wage if they are taking time off for themselves (capped at $511/day and $5,110 total) and 2/3 of their regular pay if they are absent to care for a family member (capped at $200/day and $2,000 total).
- Employers may not require employees to use vacation, PTO or other forms of paid leave before using emergency paid sick leave.
- Employers may exclude health care providers and emergency responders from emergency paid sick leave (but don’t have to).
- There will be a new notice/posting requirement for this type of leave; model notices are expected to be provided by the DOL.
- As discussed above regarding FMLA leave, employers might be able to avoid paying Emergency Paid Sick Leave by laying off or furloughing employees before April 1st. Consult your attorney before taking any such action to ensure you are aware of all possible legal implications.
If you’re wondering how you’re going to provide paid leave to employees when your business operations are suffering, try not to panic. The legislation offers businesses a quarterly tax credit for paid leave provided as required under the law.
In addition, the Small Business Administration (SBA) will work directly with state Governors to provide targeted, low-interest loans to small businesses and non-profits that have been severely impacted by the Coronavirus. You can find more information SBA.gov/Disaster. For COVID-19 updates and information from The Miller Group, visit our COVID-19 page.