EMPLOYMENT LAW ALERT:  COVID-19

  
 

Federal COVID-19 Legislation

By Brad Bendure, Donn Meindertsma, and Eric Smith

Late yesterday, President Trump signed the Families First Coronavirus Response Act, shortly after the Senate approved House Bill 6201, as amended by House Resolution 904. 

The Act is the second significant federal law addressing the COVID-19 pandemic. It is designed to provide paid leave to cushion employees who cannot work due to certain virus-related circumstances. The Act accomplishes this by both: (1) amending the Family and Medical Leave Act (FMLA) to expand family and medical leave; and (2) establishing new paid sick leave mandates. These new provisions are temporary and set to expire at the end of this year. Congress is expected to take up additional legislation relating to COVID-19 (so-called Phase 3), which may alter these new paid sick leave requirements and provide additional employee protections. 

Below is a summary of H.R. 6201, which updates our March 17 alert that was based on an earlier version of the Act. As to the employee leave provisions, the Act takes effect on April 2. In the meantime, we invite you to contact us for any additional questions you may have relating to COVID-19 legislation.

Q.  What changes does the Act make to family and medical leave?

A.  Section C of the Act (the Emergency Family and Medical Leave Expansion Act) expands family and medical leave under the FMLA. Section E (the Emergency Paid Sick Leave Act) establishes a new paid sick leave entitlement. The Act requires employers, for the first time, to provide workers paid leave, albeit only in limited circumstances.

Emergency Family and Medical Leave Expansion Act

Q. When is paid leave required?

A. The Act amends the FMLA by adding a new Section 110, which adds “public emergency health leave” (PEH) to the types of FMLA-leave qualifying employees may take. The Act does not require existing types of FMLA leave to be paid leave.

Q. Does the Act change which employers are covered by the FMLA?

A. Yes, but only for PEH leave. The FMLA normally applies to employers with 50 or more workers. The PEH leave provisions apply to employers with fewer than 500 employees. That includes employers with fewer than 50 workers.

Q.  Does the Act change which employees the FMLA covers?

A. Again, yes, but only for PEH leave. Employees are eligible (assuming their employer is covered) if they have worked for their employer for at least 30 calendar days. This includes part-time workers.

Q.  What is PEH leave?

A. PEH leave is leave taken because of a “qualifying need related to a public health emergency,” which means that an employee is unable to work (or telework) due to a need for leave to care for his or her son or daughter (under 18 years old) if the child's school or place of care has been closed, or the child's care provider is unavailable, due to a public health emergency.  Unlike the more expansive initial House bill described in our prior Alert, the new law does not provide PEH leave for other circumstances, such as for self-quarantining.

Q.  What is considered a “public health emergency?”

A. The term “public health emergency” means an emergency with respect to COVID-19 declared by a federal, state, or local authority. President Trump declared a national emergency on March 13.

Q.  When would PEH leave need to be paid leave?

A.  An employee’s first 10 days of qualifying leave may be unpaid. During that period, an employee can choose to substitute any available employer-provided accrued paid leave, but the employer may not require the employee to use accrued paid leave. Additional qualifying leave after 10 days would have to be paid at a rate of at least two-thirds of the employee’s normal wage and on the assumption that the employee is working a normal schedule. Up to twelve weeks of PEH leave is available.

Q, Are there any limits on the amount of paid PEH leave?

A. Yes. The maximum per employee is $200 per day and $10,000 in total.

Q. What if the employee does not work the same schedule from week to week?

A. For employees whose schedule various from week to week to such an extent that the employer is unable to determine with certainty the number of hours the employee would have worked during leave, pay may be based upon the average number of hours the employee was scheduled to work per day during the previous six months. For recent hires, pay may be based upon the employee’s reasonable expectation at the time of hiring of the average number of hours per day the employee would be scheduled to work.

Q. Do employees have to provide advance notice to employers before taking PEH leave?

A. Yes, but only where the need for leave is foreseeable. Even then, employees must only provide employers with as much advance notice as is practicable.

Q. Does the Act apply to nonprofits and religious organizations?

The FMLA generally applies to all employers that meet the coverage tests, whether commercial, for profit, nonprofit, or charitable. The Act does not alter that scope. However, employees of religious organizations who are “ministers” may be exempt under the so-called ministerial exception to employment laws.

Q.  Does the Act apply to small businesses?

A.  As noted, PEH leave applies to employers with fewer than 500 employees. The Act does not indicate when a "snapshot" of the workforce must be taken, but presumably the 500-worker threshold should be assessed when the Act takes effect early next month. The Act authorizes the Secretary of Labor to exempt small businesses with fewer than 50 employees from the PEH leave requirements if those requirements "would jeopardize the viability of the business as a going concern." (Logistically, it is not clear how exemptions could be obtained before paid leave must be provided.) In addition, while FMLA leave is normally job protected, employers with fewer than 25 employees are relieved of the obligation to restore workers to their pre-leave positions in two circumstances: (1) if the position held by the employee when the leave began does not exist due to economic conditions, or (2) if  there are other changes during the leave period in the employer's operating conditions that affect employment and are caused by a “public health emergency.” However, the employer must make reasonable efforts to restore the employee to an equivalent position (equivalent pay, benefits, and other job terms and conditions). Further, the employer must make reasonable efforts to contact and rehire the employee if an equivalent position becomes available during the one-year period beginning on the earlier of the date the qualifying need for leave ended or the date that is 12 weeks after the employee’s leave began.

Q.  Does the Act apply to unionized workplaces?

A.  Yes. Note that special provisions apply to employers that participate in multi-employer collective bargaining agreements.

Q.  Are there any special rules for health care providers?

A.  Yes. Employers of health care providers and first responders may elect to exclude such employees from application of the Emergency Family and Medical Leave Expansion Act. 

Emergency Paid Sick Leave Act (EPSLA)

Q.  What does the EPSLA do?

A.  The EPSLA is stand-alone legislation, rather than an amendment to the FMLA. It requires employers to provide emergency paid sick (EPS) leave in covered situations.

Q.  Does the ESPLA cover the same employers and employees as the FMLA?

A.  Employers covered by the PEH leave provisions discussed above are also subject to the EPSLA (i.e., those with fewer than 500 employees). The ESPLA covers every worker, not just those who have been on the job for a certain length of time.

Q.  When is EPS leave required?

A.  EPS leave is required in six situations—specifically, when an employee is absent because he or she:

  1. is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. is caring for an individual who (a) is subject to a federal, state, or local quarantine or isolation order related to COVID-19; or (b) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  5. is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such child is unavailable, due to COVID-19 precautions; or
  6. is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Q.  How much paid leave may employees receive?

A.  Employees must receive their regular rate of pay for leave caused by events 1, 2, or 3, above. They receive two-thirds of their regular rate of pay for leave caused by events 4, 5, or 6. In general, employees must receive the pay they would have gotten based on the hours they "would otherwise be normally scheduled to work" at their regular rate of pay. The limit for full-time employees would be 80 hours. For part-time employees, the limit is the average number of hours the employee works in a two-week period. These requirements are subject to maximum limits, which vary based on the type of situation. EPS leave maxes out at $511 per day and $5,110 in total for events 1, 2, and 3, above.  The limits are $200 per day/$2,000 in total for events 4, 5, and 6, above.

Q.  Are there any special rules for health care providers?

A.  Yes. Employers of health care providers and first responders may elect to exclude such employees from application of the ESPLA.

Q.  Can employers require employees to use other accrued sick leave provided by an employer before using the EPS leave?

A.  No. Employees may elect to use emergency paid sick leave first. The law prohibits employers from requiring employees to use other paid leave provided by the employer before the employee uses EPS leave.

Q. Does the Act apply to unionized workplaces?

A. Yes. Note that special provisions apply to employers that participate in multi-employer collective bargaining agreements.

Q. Are there other provisions employers should know about?

A. Yes, but they do not require immediate action. For example, when the Department of Labor makes it available, employers are to post a notice about these new requirements. In addition, the law prohibits retaliation against workers for taking leave or filing a complaint to enforce the law. Finally, the Act includes enforcement penalties should an employer fail to pay mandated sick leave.

The Act has raised many questions, and some common questions beyond the summary above are provided in the sidebar. The sidebar also discusses the Act's effect on health plans. Please contact us if you have questions about the Act's specific application to your workplace.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.