Employers should expect an influx of FMLA and paid sick leave requests when the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act become effective.
On March 18, 2020, Congress passed and President Trump signed the Families First Coronavirus Response Act, which includes the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. The new law provides dramatic new federal benefits to employees affected by the COVID-19 pandemic and becomes effective no later than April 2, 2020.
Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act expands the Family and Medical Leave Act (FMLA) to cover qualifying needs related to a public health emergency. The two new qualifying needs cover an employee unable to work (or telework) due to a need for leave to care for a child under 18 if (1) the school or place of care has been closed, or (2) the child care provider of such child is unavailable, in each case due to a public health emergency. “Public health emergency” is defined as an emergency with respect to COVID-19 declared by a federal, state or local authority. For this usage of the FMLA, after the first 10 days of unpaid leave (which an employee may elect to substitute for paid leave), employers must provide paid leave for the remaining FMLA period.
Unlike other uses of the FMLA, this usage applies to all employers with fewer than 500 employees. The Secretary of Labor may exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business. The law does not apply to employers with 500 or more employees. Also unlike other uses of the FMLA, any employee employed for at least 30 days when leave is requested is eligible. Note that while the law provides for a new usage of FMLA, it does not provide more than 12 weeks of FMLA leave in a 12-month period for employees who were already eligible. In other words, employees who have exhausted all of their FMLA leave entitlement are not eligible for additional benefits under the new law, and employees who have used some of their FMLA leave entitlement will only be eligible to use their remaining entitlement for the additional benefits.
Paid leave must be provided in an amount that is not less than two-thirds of the employee’s regular rate of pay and the number of hours the employee would otherwise normally be scheduled to work. Benefits are capped at $200 per day and $10,000 in the aggregate. For employees with varying schedules, the number of hours is equal to the average number of hours the employee was scheduled to work per day over the previous six months, calculated from the date when the employee takes such leave. If an employee did not work during that period, the number of hours is equal to the reasonable expectation at the time of hiring of the average number of hours the employee would be scheduled to work per day.
The Emergency Family and Medical Leave Expansion Act does not address the availability of intermittent leave or leave on a reduced work schedule for leave taken for a public health emergency. Accordingly, it would appear that leave on such a basis likely is permitted, but such leave would be subject to the FMLA’s requirements for intermittent and reduced work schedule leave. Employers should look to possible further guidance on this issue from the U.S. Department of Labor.
Where the necessity for leave is foreseeable, an employee is required to provide the employer with such notice of leave as is practicable. Although the law does not address the notice requirement when leave is not foreseeable, notice in these circumstances for use of FMLA for a public health emergency likely follows the general FMLA rule requiring an employee to notify the employer as soon as practicable.
The FMLA’s job restoration requirements also apply to most FMLA leave for a public health emergency. However, job restoration requirements do not apply for employers with fewer than 25 employees if following conditions are met:
- The employee takes leave for a public health emergency;
- The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in 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 with equivalent benefits, pay and other terms and conditions of employment; and
- If such reasonable job restoration efforts fail, the employer makes reasonable efforts to contact the employee for one year following the earlier of the date on which the employee’s leave concludes or 12 weeks after the date on which the employee’s leave commences.
An employer of a healthcare provider or emergency responder may elect to exclude such an employee from the application of FMLA leave for a public health emergency. The Secretary of Labor also has authority to exclude certain healthcare providers and emergency responders from the definition of employee under the Emergency Family and Medical Leave Expansion Act.
The expanded FMLA benefit expires on December 31, 2020.
Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave Act requires employers with fewer than 500 employees to provide all employees paid sick leave when employees are unable to work (or telework) due to the following:
- The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeks a medical diagnosis;
- The employee is caring for an individual who is subject to an order described in item 1 or has been advised to self-quarantine as in item 2;
- The employee is caring for his or her child/children if the school or place of care of the child has been closed, or the child care provider of such child is unavailable, due to COVID-19 precautions; or
- The employee 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.
As with expansion of the FMLA:
- Employers with 500 or more employees are not subject to the Emergency Paid Sick Leave Act;
- The Secretary of Labor may exempt small businesses with fewer than 50 employees from the requirement to provide paid sick leave to care for a child when the child’s school or place of child care is closed or child care provider is unavailable, when the imposition of such requirements would jeopardize the viability of the business;
- The Secretary of Labor has the authority to exclude certain healthcare providers and emergency responders from the definition of employee; and
- An employer of a healthcare provider or emergency responder may elect to exclude such employee from paid sick leave.
Full-time employees are entitled to 80 hours of paid sick leave (10 work days) and part-time employees are entitled to a number of hours equal to the number of hours that such employee works, on average, over a two-week period. For uses under items 1, 2 or 3 set forth above, paid sick leave is calculated at employee’s regular rate of pay, capped at $511 per day and $5,110 in the aggregate. For uses under items 4, 5 and 6 set forth above, paid sick leave is calculated at two-thirds the employee’s regular rate of pay, capped at $200 per day and $2,000 in the aggregate.
Paid sick leave must be provided in addition to other paid leave an employer provides, and employees cannot be required to use other paid leave prior to using paid sick leave provided by the new law. Employers are required to post and keep posted, in conspicuous places where notices to employees customarily are posted, a notice to be prepared by the Secretary of Labor. Employers are prohibited from retaliating against employees who use paid sick leave.
Violations of the paid sick leave requirements are viewed as violations of the minimum wage requirements of the Fair Labor Standards Act (FLSA), subjecting an employer to the remedies under the FLSA, which include, among other things, liquidated damages and attorneys’ fees.
The paid sick leave benefit expires on December 31, 2020.
What This Means for Employers
Employers should expect an influx of FMLA and paid sick leave requests when the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act become effective. Human resources professionals should be trained on the new FMLA and paid sick leave requirements promptly so that employers are ready for the increase in requests. Employers also should promptly draft a temporary update to their FMLA policy and an emergency paid sick leave policy to comply with the new laws.
Tax Credits for Paid Sick and Paid FMLA
The Families First Coronavirus Response Act provides refundable tax credits against the employer’s portion of the quarterly Social Security tax payments for payments made in each quarter for paid FMLA leave and paid sick leave taken under the new law. The Department of the Treasury is directed to provide regulations to carry out this tax credit directive.
The amount of the tax credit is generally equal to 100 percent of the qualified sick leave wages and qualified family leave wages paid by the employer with respect to the calendar quarter, up to a per-employee cap of $511 per day for qualified sick leave wages and $200 per day for qualified family leave wages.
Due to the refundable nature of the tax credit, if the aggregate amount of qualified sick leave wages and qualified family leave wages paid by the employer in a calendar quarter exceeds the employer’s portion of the quarterly Social Security tax payments payable with respect to all employees, the excess will be treated as an overpayment and will result in a refund for the employer.
EEOC and OSHA Issue Updates
On March 18, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released updated guidance regarding issues related to the Americans with Disabilities Act (ADA) and COVID-19. Among other things, the guidance confirmed that employers may measure employees’ body temperature during the COVID-19 pandemic, at least under federal law. Employers should still consider whether state or local law prohibits such examinations.
The Occupational Safety and Health Administration (OSHA) has clarified that COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. Employers are only responsible for recording cases of COVID-19 if all of the following conditions are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related as defined by OSHA regulations; and (3) the case involves one or more of the general recording criteria set forth in OSHA regulations (e.g., medical treatment beyond first-aid, days away from work, etc.). OSHA also has updated guidance regarding preparing workplaces for COVID-19.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For Further Information
If you have any questions about this Alert, please contact Eve I. Klein, Jonathan A. Segal, Linda B. Hollinshead, Christopher D. Durham, Eric W. Ruden, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.