2020

Federal Emergency Paid Sick Leave Legislation Introduced

Over the weekend, the House passed a revised version of the Families First Coronavirus Response Act which, among other things, addresses federal emergency FMLA and paid sick leave. Importantly, this bill has not been approved by the Senate yet, so this is all subject to change. Below are the current highlights.

Emergency Family and Medical Leave Expansion Act

Effective Dates: This portion of the bill would take effect 15 days after signed by the President, and would sunset December 31, 2020.

Covered Employers: Government employers and companies with fewer than 500 employees (even fewer than 50 employees, subject to potential exemption for business with fewer than 50 employees if providing leave would close business)

Eligible Employees: Employees who have been working for at least 30 calendar days. It’s unclear if days worked must be consecutive, but what is clear is the traditional FMLA eligibility requirements (1 year of employment, 1250 hours worked in 12 months preceding leave, at least 50 employees within 75-mile radius) need not be met

Leave Entitlement: 12 weeks. The current version of the bill does not address intermittent or reduced leave, so this is a potential gray area

Reasons for Leave:

· To comply with a recommendation or order to quarantine due to exposure to or exhibition of symptoms of coronavirus;

· To care for a family member* who must quarantine due to exposure to or exhibition of symptoms of coronavirus (*definition of family member expanded to include a parent of the employee; a spouse of the employee; a son or daughter under 18 of the employee; an individual who is a pregnant woman, senior citizen, individual with a disability, or has access to function needs and who is a son or daughter of the employee, a next of kin of the employee or a person for whom the employee is next of kin, a grandparent or grandchild of the employee); and

· To care for a child if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a public health emergency.

Financial Benefit: The first 14 days of emergency FMLA leave may be unpaid unless an employee elects to utilize any accrued vacation leave, personal leave, sick leave, or other PTO concurrently. Employers may not require use of PTO during emergency FMLA leave. After 14 days, employees would be eligible for an amount that is not less than two-thirds of their regular rate of pay.

Reinstatement: Employees are eligible for reinstatement pursuant to default FMLA rules. One potential exception applies for employers with fewer than 25 employees if certain conditions are met (such as non-existence of previously held position due to economic conditions, etc.)

Emergency Paid Sick Leave Act

Effective Dates: This portion of the bill would take effect 15 days after signed by the President, and would sunset December 31, 2020.

Covered Employers: Government employers and companies with fewer than 500 employees

Eligible Employees: All current employees, regardless of days of service

Leave Entitlement: 2 weeks of paid leave, meaning 80 hours for full-time employees, and pro-rata for part-time employees

Reasons for Leave:

· To quarantine or self-isolate because of diagnosed coronavirus

· To obtain a diagnosis or medical care for coronavirus symptoms

· To comply with a recommendation or order from public official or health care provider that an employee shouldn’t be at work because of exposure to or exhibition of symptoms of coronavirus

· To care for a family member for similar coronavirus-related reasons as outlined above

· To care for a child whose school has closed, or childcare provider is unavailable, due to coronavirus

Financial Benefit: Employees should receive their regular rate of pay for leave related to the first three bullet points above. When employees use paid sick leave to care for a family member, they are entitled to two-thirds their regular rate of pay.

Carryover: Paid sick time under the new law would not carryover from one year to the next, nor is payout required upon separation.

Existing Leave Policies: Paid sick leave under the new law would be made available to employees in addition to leave under an existing company policy. Employers may not change their paid leave policies to avoid being subject to the new law.

Tax Credits

As currently written, the new law would provide a refundable tax credit equal to 100% of qualified family and sick leave wages an employer pays for each calendar quarter. There would even be tax credits available to self-employed individuals.

This blog article is intended for general informational purposes only and should not be construed as legal advice or opinion. Contact myHRcounsel with questions concerning specific facts and circumstances.