Public Health Emergency Leave
This is an amendment to FMLA, which gives eligible employees 12 weeks of job-protected leave for a qualifying condition. Under the Act, the leave is extended to include “an employee who is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable,” due to the COVID-19 public health emergency. Under the terms of this provision, the first ten days of the leave are unpaid, but the employee can substitute any paid leave provided by the employer, or the new federally-mandated Paid Sick Leave described below. After ten days, the employer is obligated to pay the employee an amount not less than two-thirds of the employee’s regular rate of pay, with a cap of $200 per day, with a total cap per employee of $10,000 aggregate.
All employers with fewer than 500 employees are covered by this provision; however, the law gives the US Department of Labor the authority to issue regulations exempting employers with fewer than 50 employees, if the imposition of these requirements would jeopardize the viability of the business as a going concern. Those regulations have not been issued, but I will continue to follow this closely.
All employees who have worked for at least 30 days are covered. This is much different than FMLA, which requires a one-year waiting period. The normal job restoration requirements of the FMLA are in effect, but do not apply to employers of less than 25 employees if the employee’s position no longer exists.
This law becomes effective 15 days after enactment of the law, or April 2, 2020.
Emergency Paid Sick Leave Act
Employers must provide to each employee paid sick leave if the employee is unable to work (or telework) due to a need for leave because:
- The employee is subject to a state or federal quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- The employee is caring for an individual who is subject to a quarantine order or has been advised by a medical professional to self-quarantine; or
- The employee is caring for a son or daughter of such employee if the school or place of care of that son or daughter has been closed, or the child care provider is unavailable, due to COVID-19 concerns.
For reasons number 1-3, the pay is capped at $511 per day (or $5,110 in the aggregate). For reasons (4) and (5), the amount is capped at $200 per day.
For full-time employees, the paid sick leave is capped at 80 hours at the employee’s regular rate of pay. For part-time employees, employers would average their wages over a two-week period. Importantly, this leave is in addition to any paid leave time provided by the employer, and the employer cannot require an employee to use other leave time first.
There is no waiting period for the paid sick time, regardless of how long the employee has worked for the employer. All employers with fewer than 500 employees are covered.
The US Department of Labor will issue a notice, which will need to be posted.
This law also becomes effective 15 days after enactment, or April 2, 2020.
The Department of Labor is directed to issue regulations before the effective date. I will continue to look for those and update you as soon as they are launched.
Employers must pay for these benefits, but will receive a tax credit for doing so.