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Covid-19 Federal Paid Sick Leave Legislation Just Passed:  What Employers Are Obligated To Do

Two federal Acts will take effect on April 2, 2020.    Both cover employers with less than 500 employees. Together they provide 12 weeks of paid leave for employees who must care for someone impacted by COVID-19 or who are themselves sick or likely infected by the virus.  Here is the initial guidance on these laws:

Emergency Family and Medical Leave Expansion Act

This Act expands time off provided under the Family Medical Leave Act (FMLA).  However, unlike the FMLA, this Act provides time off with pay.  It also covers employees who have worked for as little as 30 days for the employer.  

Employers with fewer than 500 employees must provide up to 12 weeks of leave for employees who are unable to work (or telework) due to a need to care for their son or daughter who is under 18 years of age and whose school or place of care has been closed, or the child care provider is unavailable, due to the COVID-19 virus.  To qualify, an employee must provide notice as is practical.  

The initial 10 days of leave is unpaid (but see below). Thereafter, employers must pay not less than two-thirds (2/3) of the employees’ regular rate for the remaining ten (10) weeks—but limited to $200 per day.  Small businesses with fewer than 50 employees may be exempt from these requirements “when the imposition of such requirements would jeopardize the viability of the business.”

For employers with 25 or more employees, the employee is entitled to reinstatement to the same or equivalent position. Employers with fewer than 25 employees must make reasonable efforts to restore an employee to his or her previous position but may be exempt from reinstating the employee if such reasonable efforts fail and the economic or operating conditions of the employer have changed due to the COVID-19 pandemic. 

Emergency Paid Sick Leave Act

This Act provides pay for the first two (unpaid) weeks of leave under the Emergency Family Medical Leave Expansion Act.   Employees are immediately eligible; there is no 30 day waiting period.  Employers with fewer than 500 employees must provide two (2) weeks of paid sick time to employees who are unable to work (including telework) for one of the following six reasons.  The reasons break down into COVID-19 quarantine/sick related issues and providing care for someone impacted by COVID-19.

COVID-19 Quarantine/Sick Related Issues
1.  The employee is subject to a federal, state, or local quarantine or isolation order relating to COVID-19;
2.  The employee has been advised by a health care provider to self-quarantine due to COVID-19;
3.  The employee has sought a medical diagnosis resulting from symptoms of COVID-19;

Providing Care for Someone Impacted by COVID-19
4. The employee is caring for an individual subject to a quarantine order;
5.  The employee is caring for the employee’s own child whose school is closed, or whose care provider is unavailable due to COVID-19; or
6. The employee is experiencing any other substantially similar condition specified by the Department of Health and Human Services.

For an employee absent under subsections (1), (2), and (3), compensation shall not be less than the employee’s regular rate but shall not exceed $511 per day.  The 2/3 pay maximum, as described in the Act above, does not apply here.   

For an employee absent under subsections (4), (5), and (6), compensation shall be no more than two-thirds of the employees’ normal pay and shall not exceed $200 per day.

 A full-time employee is entitled to 80 hours of paid sick time. A part-time employee is entitled to the number of hours worked on average over a two (2) week period. 

Employers may not require the employee to find a replacement worker. Employers may not require an employee to use other paid leave before using paid sick time under this Act.
 
The employer must post notice of its obligations under this Act in a conspicuous place on its premises.  The Secretary of Labor shall make available a model notice by March 25, 2020.

The subject matter discussed in this post can be very technical.  It is an evolving area of law and very fact specific.  Our goal here is to simply alert you to some of the key issues involved.  We urge you to seek competent legal counsel before applying these ideas to your specific situation.  Brody and Associates stands ready to discuss your particular needs.