PAID EMPLOYEE LEAVE DUE TO CORONAVIRUS

By: Jacqueline M. Woolley, Esq.

Employees and employers alike need to be aware of their rights and obligations under the new Federal legislation which provides for paid leave under several circumstances related to the coronavirus. They are described below. If you have questions or concerns, either as an employee or employer, regarding these new requirements you can reach us for legal advice at 610-660-5585.

Families First Coronavirus Response Act

On March 18, 2020 the United States Congress passed the Families First Coronavirus Response Act (“FFCRA”) in an effort to address some of the havoc COVID-19 is wreaking on workplaces all across the country.  The FFCRA legislation contains two distinct provisions intended to mandate paid time off for employees during the pandemic if necessitated by sickness caused by COVID-19.  In return and in an effort to help offset the expense for these significant new paid leave requirements, the FFCRA expands tax credits for employers who are required to provide emergency paid FMLA leave and emergency paid sick leave under this new law.   The FFCRA goes into effect nationwide starting today, April 1, 2020.

Emergency Paid Sick Leave Act

One provision of the FFCRA requires employers with fewer than 500 employees, and public employers of any size, to provide paid sick leave to an employee who is unable to work (or telework) due to:

  1. being subject to a federal, state or local quarantine order related to COVID-19;
  2. having been advised by a health care provider to self-quarantine;
  3. experiencing symptoms of COVID-19 and is seeking a diagnosis;
  4. caring for an individual who is subject to an order for quarantine; or
  5. caring for the employee’s child because the child’s school is closed and/or the child’s regular caregiver is unavailable; or
  6. the employee is experiencing a substantially similar condition recognized by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

From today through the end of this year, the Act mandates that all full-time employees (regardless of length of employment) are entitled to 80 hours of paid sick time. Part-time employees are entitled to paid sick leave in a number of hours equal to the number of hours that he/she works on average every 2 weeks.  Paid sick leave related to the employee’s own coronavirus-related needs (reasons 1-3 above) is paid at 100% of the employee’s usual rate of pay but is capped at $511/day up to a total of $5110 per employee. If, alternatively, the employee’s absence from work is necessitated by his/her need to care for a loved one or is taken for a recognized “substantially similar condition” (reasons 4-6 above), he/she will be entitled to 2/3 of his/her regular pay rate, up to $200 per day, or $2000 in the aggregate for the 2-week period.

Employers may not require employees to exhaust other employer-provided paid leave before using the coronavirus-related paid sick leave.  It is fully an employee’s prerogative to use this newly mandated sick leave first.

The Secretary of Labor is empowered to issue regulations for good cause in order to exempt businesses with fewer than 50 employees from having to follow these paid leave mandates if providing such leave would jeopardize the viability of the business as a going concern. As of now, no regulations have been issued further clarifying this potential exemption.

Emergency Family & Medical Leave Expansion Act

A second provision of the FFCRA expands and amends the Family Medical Leave ACT (“FMLA”) on a temporary basis, requiring employers with fewer than 500 employees (instead of employers with 50 or more employees) to provide up to 12 weeks of job-protected public health emergency leave to their employees through December 31, 2020. Another substantial change expands the number of employees who will qualify for such leave by reducing the length of time the employee had to be employed by the employer before becoming eligible for the family leave. This new law deems any employee employed for 30 or more days to be eligible for paid, job-protected leave if they have a “qualifying need” related to a public health emergency. The only “qualified need” specified in this expanded law relates to an employee’s inability to work (or telework) for childcare reasons (i.e. because of the need to care for a minor child due to the child’s school or daycare closing or unavailability of regular compensated child care provider).

An employee who requires leave to care for a minor child whose school or childcare is closed due to coronavirus is eligible both for Emergency Paid Sick Leave and Emergency Family & Medical Leave. In this situation, the employee would be paid for his/her first 2 weeks of leave as Emergency Paid Sick Leave at the 2/3 pay rate (explained above in the prior section), which also would count as the first 2 weeks of expanded 12-week FMLA leave (which normally is unpaid).  After the first 2 weeks, the employee would receive 2/3 of his/her regular rate of pay for the remaining 10 weeks.  An employee is only able to use those additional 10 weeks of expanded leave to care for a minor child whose school or childcare has closed because of coronavirus.  Like the Emergency Paid Sick Leave provision, this expanded leave provision also covers part-time employees (pro-rated to account for the reduced hours).

Similar to the Emergency Paid Sick Leave provisions, the Secretary of Labor is authorized to issue regulations for good cause which would exempt small businesses employing fewer than 50 employees from these provisions if it is determined that complying with these expanded paid leave requirements “would jeopardize the viability of the business as a going concern.”  To date, though, no specific regulations have been issued further explaining this small business exception.

Required Posting/Employee Notice

The Department of Labor has issued a revised notice/posting that all employers are required to disseminate to all of their employees in order to satisfy the FFCRA’s notice requirements.  The DOL link for that revised poster is here:   https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

DOL’s Expanded Q&As

DOL also has expanded its FAQ page related to the FFCRA and the link to that page is here:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions