On March 19, 2020, President Trump signed legislation extending to certain employees paid sick time related to the coronavirus and paid leave under the Family and Medical Leave Act (“FMLA”). This is a piece of key legislation designed to help workers deal with uncertainty created by the current coronavirus pandemic. Below is a summary of the law’s key provisions.
Emergency Paid Sick Leave Act
The law requires an employer with fewer than 500 employees to provide each employee paid sick time if the employee is unable to work (including remotely) because of:
- A federal, state, or local quarantine or isolation order related to the coronavirus.
- Advice from a health care provider to self-quarantine due to concerns related to the coronavirus.
- The employee is experiencing symptoms of coronavirus and is seeking a medical diagnosis.
- The employee is caring for someone who is subject to a quarantine order or a health care provider’s advice to self-quarantine.
- The employee is caring for their child because the child’s school or childcare provider has been closed, or if the childcare provider is unavailable, due to coronavirus precautions.
- 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.
Other key points:
- How much leave – Full-time employees are entitled to 80 hours of paid sick leave. Part-time employees are entitled to the number of hours worked, on average, over a two-week period. The time cannot be carried from one year to the next.
- Order of use – An employee may first use the paid sick time under the Sick Leave Act. An employer cannot require that the employee use the other sick leave before paid sick leave under the new law.
- Anti-retaliation/anti-discrimination – An employer may not discharge, discipline or discriminate against any employee who takes leave under the new law or files any complaint or proceeding related to the new law.
- Paid sick leave calculation – the value of the paid leave is calculated based on compensation and the number of hours the employee would otherwise be normally scheduled to work, not to exceed:
- $511 per day and $5,110 in total for employees who are under quarantine (government or health care ordered) or are experiencing symptoms of coronavirus and being tested.
- $200 per day and $2,000 in total for employees who are caring for quarantined or sick individuals or a child whose school or childcare is closed or unavailable. In addition, if paid sick leave is taken, it is paid at two-thirds (2/3) rather than 100%.
- Exemptions – The Secretary of Labor shall have the authority to issue regulations exempting certain employers:
- To exclude certain health care providers and emergency responders from the definition of employee, including by allowing the employer of such health care provider and emergency responders to opt-out; and
- To exempt small businesses with fewer than 50 employees from the requirements if they would jeopardize the viability of the business.
Family and Medical Leave Expansion Act
Employees who have been employed for at least 30 calendar days and who are employed by an employer with fewer than 500 employees for each of 20 or more calendar days during the current or preceding calendar year are eligible for the expanded family and medical leave. However, an employer of an employee who is a health care provider or an emergency medical responder may elect to exclude such an employee from the application of the new law.
- When is the leave available – Leave is available when a qualifying need related to a public health emergency exists, which means the employee is unable to work (or telework) due to a need to care for a son or daughter under the age of 18 years of age of such employee if the school or place of care has been closed or is unavailable due to a public health emergency. (Childcare provider means a provider who received compensation for provided childcare services on a regular basis. School means an elementary or secondary school).
- Exemptions – The Secretary of Labor shall have the authority to issue regulations to exempt from coverage under the new law
- Health care providers and emergency responders from the definition of eligible employee; and
- To exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business.
- Key provisions
- 10 unpaid days – the first 10 days may be unpaid, but the employee may elect to substitute accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.
- Two-thirds thereafter – Leave is paid at two-thirds pay after the first 10 days at the employee’s regular rate of pay “based on the number of hours that the employee would otherwise be scheduled work” for up to 12 weeks.
- Maximum pay available – In no event shall the paid leave under the new law exceed $200 per day and $10,000.00 in total.
- Job protection – An employer is required to restore an employee to the position held before the leave unless: (1) the employer has fewer than 25 employees, AND (2) 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: (i) that affect employment, and (ii) that are caused by a public health emergency during the period of leave.
For more information click this link: https://www.littler.com/publication-press/publication/senate-approves-paid-sick-leave-family-medical-leave-expansion-bill