Senate Approval of Sick Leave

Lee Geiger & Samantha Rittgers

Finally … we have some direction from Congress and the President about the rumored paid leave law to assist employees affected by COVID-19. The new law is the Families First Coronavirus Response Act. In addition to the many parts that address funding and the economic impact of COVID-19, it has two substantial provisions that impact employers and employees: (1) Amends the FMLA to apply to people affected by COVID-19; and (2) Provides emergency paid sick leave to people affected by COVID-19. The good news is that the law will be helpful to employees. The bad news is that employers will bear the brunt of the impact.

We are still waiting on regulations from the Department of Labor. Those will provide more guidance. As with everything that has happened in the last week, this issue continues to evolve and we will provide updates as the impact becomes clearer.

The law is 112 pages long! Click here if you want to read the law. Obviously, it is difficult to condense 112 pages into a single article. With that in mind, here is a VERY high level summary:

(1) Emergency Family Medical Leave Expansion Act (EFMLEA)

What Changes:

  • Covers employers with fewer than 500 employees. (This means that small companies that were previously exempt from the FMLA are now obligated to follow these provisions for Coronavirus-related leave but not for other FMLA matters. There are provisions for small employers, healthcare providers and first responders to seek an exemption but it is not immediately clear how that process will work. More to come in the next few days, I’m sure.)
  • It applies to individuals employed at least 30 days.
  • New definitions of parent and family members.
  • Up to 12 weeks of leave. (This is not a change.)
    • Job restoration required for employers with 25 or more employees.
    • Smaller employers may have flexibility if the position no longer exists.
  • The first 10 days under the EFMLEA are unpaid. After that period, employers must pay 2/3 of the employee’s regular rate for normal hours/schedule. There is a limit of $200/day and $10,000 total per employee. There are calculation methods for part-time employees and employees with irregular hours.

What Doesn’t Change?

  • The EFMLEA provisions apply only to individuals affected by COVID-19. The “regular” provisions of the FMLA remain in place.

When is the EFMLEA Effective?

  • The EFMLEA amendments are effective 15 days after enactment and remain in effect until 12/31/2020.

(2) Emergency Paid Sick Leave Act (EPSLA)

What’s Included?

  • 80 hours of paid sick leave for eligible employees who miss work for COVID-19 related reasons. The list of covered circumstances is broad and includes caring for non-family members. There are reductions in amount of pay an employee receives for certain circumstances.
  • Applies to Employers with fewer than 500 employees.
  • There is no length of employment requirement.
  • Caps on Sick Leave Pay: limited to $511/day (up to $5110 total) per employee for their own use and $200/day (up to $2000 total) to care for others.
    • This is in addition to any paid sick leave already provided by employers.

When is the EPSLA Effective?

  • The paid sick leave program becomes effective 15 days after enactment and remains in effect until 12/31/2020.

Please note that many state and local governments already have paid sick leave requirements in place and others are acting quickly to enact new laws. Employers generally need to comply with those laws in addition to the new laws. (Ideally, there is some overlap, but that is not always the case.)

Like everything Coronavirus-related, this is moving very quickly. Congress is already working on a third stimulus package which may impact the laws passed last night. Nonetheless, employers with fewer than 500 employees need to jump on this immediately and begin reviewing the impact on current employees.  There will also be notice and posting requirements.

At the risk of appearing self-serving, it is critical for companies to work with an experienced employment attorney to navigate these law changes. The issues are very complex. Now is not the time to cross your fingers and hope for the best.

We will continue to update you on these laws as new information becomes available.

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