Many employers must offer paid leave under the Coronavirus Relief Act

A new federal law will provide paid time off to employees who miss work for certain reasons related to the coronavirus. Pending guidance and interpretation from the Ministry of Labor, employers can use the following to prepare.

The Families First Coronavirus Response Act (HR 6201), which was signed into law on March 18, will provide paid family emergency leave in limited circumstances, as well as paid sick leave for those affected by COVID-19, the respiratory disease caused by the coronavirus.

In general, the legislation’s emergency paid leave provisions apply to businesses with fewer than 500 employees, but there may be exceptions for small businesses and businesses that employ healthcare workers. These provisions come into force on April 1 and expire on December 31.

“Employers should use preparation time to review and revise their [Family and Medical Leave Act (FMLA)] and sick leave policies with the assistance of a knowledgeable employment attorney,” said Esra Hudson, attorney at Manatt in Los Angeles. “Changes should be promptly communicated to employees in writing in a simple format, such as a question and answer.

Paid family leave

The legislation updates the FMLA to provide workers with up to 12 weeks of job-protected leave when they can’t work — onsite or remotely — because their school or daycare center underage son or daughter is closed due to a public health emergency. The FMLA defines “son or daughter” as a biological, adopted, or adoptive child; a son-in-law; a legal department; or a child of a person taking the place of a parent.

The first 10 days of leave can be unpaid. “An employee can choose to override accrued vacation, personal or sick days during this time, but an employer cannot require an employee to do so,” explained Jim Paretti and Michael Lotito, attorneys at Littler in Washington, D.C. DC, and Sacramento, CA. ., respectively.

For the other 10 weeks, eligible workers must receive two-thirds of their regular rate of pay, which will be capped at $200 per day (and $10,000 in total).

{HR questions and answers reserved for SHRM members:

How does the Family First Coronavirus Response Act (HR 6201) impact employers?]

“For employees with variable hours each week, paid time off would be equal to the average number of hours worked per day over the previous six months,” said Linda Jackson, attorney at Arent Fox in Washington, DC.

Scott Witlin, an attorney at Barnes & Thornburg in Los Angeles, noted that the eligibility standards are very different from those provided by the FMLA’s regular provisions. Workers who have been on the payroll for at least 30 calendar days will be eligible for emergency paid family leave benefits.

Paid sick leave

Under the bill, many employers will have to provide up to 80 hours of paid sick leave if an employee:

  1. Received government orders to self-quarantine or self-isolate due to COVID-19.
  2. Was advised by a health care provider to self-quarantine due to COVID-19.
  3. Has symptoms of COVID-19 and is seeking a medical diagnosis.
  4. Caring for a person who is under a government quarantine or isolation order or who has been advised by a health care provider to quarantine or isolate.
  5. Must care for a son or daughter whose school or daycare is closed due to COVID-19 precautions.
  6. Experiences conditions substantially similar to those specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Note that paid sick leave is now available for employees who have to care for anyone, Hudson said. This is much broader than an earlier version of the bill which was limited to family members.

Paid sick leave shall be paid at the employee’s regular rate of pay, or minimum wage, whichever is greater, for leave taken for reasons 1-3 above. Employees taking time off for reasons 4 through 6 may be paid two-thirds of their regular rate of pay or minimum wage, whichever is greater.

Part-time employees are entitled to take the number of hours they would normally work in a two-week period.

Employers should also note that they cannot:

  • Require an employee to use other paid leave before using paid sick leave under the new legislation.
  • Requiring an employee to find a replacement to cover their scheduled work hours.
  • Take retaliatory action against any employee who takes leave in accordance with the law.
  • Retaliate against any employee who files a complaint or participates in any proceeding related to the law, including any law enforcement proceeding.

Paid sick leave benefits will be immediately available when the law comes into effect, regardless of how long the worker has been employed. “These benefits are also subject to statutory caps per employee, based on the reasons for the leave, and so employers must follow them to take advantage of the tax credits associated with these new forms of leave,” Hudson said.

Under the legislation, paid sick leave is limited to $511 per day (and $5,110 total) for a worker’s personal care and $200 per day (and $2,000 total) when the employee takes care of someone else.

An employer may require the worker to follow reasonable notice procedures to continue receiving benefits after the first working day an employee receives paid sick leave under the law.

Exceptions for certain employers

“For large employers with 500 or more employees, there’s no change,” Witlin said. “They are exempt.” However, larger companies may feel compelled to cover such leave themselves. “Even without the pressure, I think they’ll be up to it,” Witlin noted.

Treasury Secretary Steven Mnuchin had said “big business can afford these things.” And United States House Speaker Nancy Pelosi
wrote on Twitter during the negotiations of the bill, “I do not support American taxpayers’ money subsidizing companies to provide benefits to workers that they should already be providing.”

The legislation allows the Secretary of Labor to exclude health care providers and emergency responders from the definition of employees entitled to take leave. Additionally, employers with less than 50 workers can apply to the Secretary of Labor for a waiver of paid family and medical leave and paid sick leave if doing so would “jeopardize the viability of the business.”

FMLA emergency leave generally requires employers to reinstate employees in the same job or an equivalent position when they return to work, but there is an exception for employers with fewer than 25 employees if the position no longer exists in due to economic conditions or operational changes that are made due to the public health emergency.

“The bill includes refundable tax credits for employers who are required to provide emergency FMLA or paid sick leave, including the self-employed,” Paretti and Lotito said. “Note that these credits are only available to employers who are required to provide these benefits under the bill.”

Employer employment

The legislation is complex and has been drafted quickly. “No one can be an expert on this new law and its complex provisions,” noted Jason Reisman, attorney at Blank Rome in Philadelphia. “So communicate early and often.”

If employers don’t know what to do, Reisman suggested they say so: “‘We are looking at the new law and its provisions because our goal is to do everything we can to try to protect our workers and make sure that we all stay sane when things get back to normal. “Communication is important and can be soothing,” he says. “But think before you speak. Words matter.”

Reisman suggested that covered employers put in place and provide workers with a written policy or outline outlining the new benefits required, detailing what the benefits are, all eligibility criteria, how they can be used and interaction with other benefits available, such as paid time. leave, sick leave and vacation.

“It’s important to stay tuned for updates and guidance, which are expected to come primarily from the U.S. Department of Labor over the next two weeks,” he said.

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