Employment Law Bulletin | March 19, 2020 (COVID-19)
FAMILIES FIRST CORONAVIRUS RESPONSE ACT
Last night, President Trump signed emergency legislation providing protections for employees affected by COVID-19. The new law requires employers of fewer than 500 employees to provide family and medical leave and paid sick leave to eligible employees for specified COVID-19 related events. It becomes effective on April 2, 2020 and expires on December 31, 2020. The new law has posting requirements and provides for employer tax credits. A model poster will be available by March 25, 2020.
Emergency Family and Medical Leave Expansion Act (EFMLA)
The EFMLA law requires employers of fewer than 500 employees to provide up to 12 workweeks of job-protected leave to employees who have been employed for at least 30 calendar days and are unable to work (or telework) due to the need to care for their child, if the child’s school or paid child care provider has closed because of a public health emergency. Employers are not required to pay employees for the first 10 days of the leave, but must allow employees to use their accrued vacation, personal leave or sick leave if they choose. The remaining 10 workweeks of leave must be paid by the employer at two-thirds of the employee’s regular pay (capped at $200 per day and $10,000 in the aggregate, per employee).
Paid leave is calculated as follows:
- Employees with Fixed Work Schedules: Two-thirds of an employee’s regular rate of pay multiplied by the number of hours the employee would otherwise be normally scheduled to work
- Employees with Schedules that Vary Week-to-Week: Two-thirds of an employee’s regular rate of pay multiplied by the average number of hours the employee was scheduled per day over the 6-month period ending on the date on which the employee takes leave, including hours for which the employee took leave of any type. (If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.)
Employees taking this leave have job restoration rights at the end of the 12-week leave period. Employees must be restored to the same position or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. Exceptions exist for employers of 1-24 employees, if employers can prove all of the following:
- The employee’s position does not exist due to economic conditions or other changes in the operating conditions of the employer
- that affect employment; and
- are caused by a public health emergency during the period of leave.
- The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.
- If the reasonable efforts to restore the employee fail, the employer makes reasonable efforts during the Contact Period to contact the employee if an equivalent position becomes available. (The Contact Period is the 1-year period beginning on the earlier of (a) the date on which the qualifying need related to a public health emergency ends; or (b) the date that is 12 weeks after the date on which the employee’s leave begins.
The EFLMA permits employers of employees who are health care providers or emergency responders to elect to exclude such employees from EFMLA.
Finally, an employer that is part of a multi-employer collective bargaining agreement (MCBA) may fulfill its obligations by making contributions to the multi-employer fund, plan or program based on the paid leave each of its employees is entitled to while working under the MCBA.
Lisa Ann Hilario
Emergency Paid Sick Leave Act (EPSLA)
The EPSLA requires employers of fewer than 500 employees to provide 10 days of emergency paid sick leave to employees who are unable to work (or telework) because the employee:
- is subject to (or caring for an individual who is subject to) a Federal, State, or local quarantine or isolation order related to COVID-19 (for instance a Shelter In Place Order)
- has been advised (or is caring for an individual who has been advised) by a health care provider to self-quarantine due to concerns related to COVID-19
- is experiencing symptoms of COVID-19 and seeking a medical diagnosis
- is caring for the employee’s child whose school or child care provider has been closed or unavailable due to COVID-19 precautions
- 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.
The amount of sick leave pay varies according to the reason for the leave:
- EPSL for the employee’s own quarantine, isolation, or symptoms is equal to the employee’s regular rate of pay multiplied by 80 hours (for full-time employees) or the number of hours the employee would work, on average, over a two-week period (for part-time employees**). A maximum of $511/day and $5,110 in the aggregate per employee applies.
- EPSL to care for another who has been quarantined or isolated, or to care for a child whose school is closed, is equal to two-thirds of the above-amount. A maximum of $200/day and $2,000 in the aggregate per employee applies.
**If the part-time employee’s work schedule varies week-to-week, use the average number of hours the employee was scheduled per day over the 6-month period ending on the date on which the employee takes EPSL, including hours for which the employee took leave of any type. (If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.)
Employers must allow employees to use EPSL for a qualifying reason first, before the employee uses other paid sick leave, personal leave and vacation offered by the employer. EPSL does not carry over from one year to the next and does not need to be paid out on termination of employment.
Finally, an employer that is part of a multi-employer collective bargaining agreement (MCBA) may fulfill its obligations by making contributions to the multi-employer fund, plan or program based on the paid sick time each of its employees is entitled to while working under the MCBA.
Lisa Ann Hilario
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Spaulding McCullough & Tansil LLP
Employment Law Group
