Groundbreaking Paid Sick Leave Bill Becomes Law

On Wednesday, March 18, 2020, President Trump signed the Emergency Families First Coronavirus Response Act (H.R. 6201) into law. Among other things, the new law creates the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act, each of which creates excused time off and paid leave for certain employees dealing with COVID-19. Employee eligibility, rights and benefits have, however, changed significantly from the initial House version adopted on March 14, 2020. A summary of the major portions of the new law is included below. For additional information and an opportunity to discuss the new law with Hall Render attorneys, please join us on March 23, 2020, for a webinar, COVID-19 Brings New Emergency Paid Sick Leave and Paid Family Leave: What Employers Should Know Now. Details and information regarding the webinar can be found here.

Emergency Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act (“EFMLA”) amends the federal Family and Medical Leave Act (“FMLA”) by providing paid leave and job protection when an employee is unable to work (or telework) due to a need for leave to care for their child. While EFMLA Leave is not available for employees who choose to isolate or for whom quarantine has been recommended (unless the employee has a serious health condition, of course), the related Emergency Paid Sick Leave Act provides a leave alternative to EFMLA and FMLA for such reasons, as described later in this article

When is the EFMLA Effective?

The EFMLA is effective no later than April 2, 2020, and expires on December 31, 2020.

Who Is Covered by the EFMLA?

Employees of private employers with fewer than 500 employees, and employees of most covered public sector employers. However, there is no private right of action by an employee against an employer for violation of the EFMLA by an employer with fewer than 50 employees.
To be covered, an employee must be employed by the employer for 30 days. The statute does not contain a minimum hours worked requirement, such that a part-time or PRN employee may be eligible for EFMLA leave.
An employer may elect to exclude certain health care providers or emergency responders from coverage under the EFMLA. Without further guidance, and because the EFMLA amends the existing FMLA, we interpret “health care providers” in the same manner as the existing FMLA, which is:
- A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or
- Any other person determined by the Secretary to be capable of providing health care services (e.g., podiatrists, dentists, clinical psychologists, nurse practitioners, nurse midwives, clinical social workers, physician assistance and any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits).
The Department of Labor (“DOL”) has the authority to issue regulations to: (i) exempt small employers (fewer than 50 employees) from coverage under the EFMLA if the EFMLA requirements would jeopardize the viability of the business; and/or, (ii) exclude other health care providers and emergency responders.

What Is Provided?

12 weeks of job-protected leave under the FMLA because the eligible employee is unable to work (or telework) due to a need for leave to care for the employee’s son or daughter under 18 years of age if the child’s school or place of care has been closed or the child’s care provider is unavailable due to a COVID-19 public health emergency. A child care provider is someone who has received compensation for providing care on a regular basis prior to the enactment of the EFMLA.
The first 10 days of the 12-week leave may be unpaid, although an employee may choose to substitute accrued vacation leave, personal leave or other medical or sick leave, including Emergency Paid Sick Leave, described below.
Pay for the remainder of the employee’s the EFMLA period may not be less than two‑thirds of the employee’s regular rate of pay AND the number of hours the employee would otherwise be normally scheduled to work (a separate rule applies for employees with a varying schedule), to a maximum of $200 per day and $10,000, per employee, in the aggregate.
The law does not limit use of the EFMLA only to a continuous period of leave. As such, arguably employees could use it on an intermittent basis.

Is job restoration required?

Yes, just like the traditional FMLA, job restoration to either the same position or one with equivalent pay, benefits and other terms and conditions is required. However, employers with fewer than 25 employees do not have to provide job restoration when certain conditions as described in the law are met.

What notice is required from/to employees?

Employees must provide the employer with as much notice of leave as is practicable when the need for leave under the EFMLA is foreseeable. The law does not list any specific notice requirements for employers to provide employees, although the DOL could update existing FMLA posters or notices.

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act (“EPSLA”) provides employees with limited paid leave if they are unable to work (or telework) for covered reasons.

When is the Emergency Paid Sick Leave Act Effective?

The EPSLA will be effective no later than April 2, 2020, and will expire on December 31, 2020.

Who Is Covered?

It will cover both private employers with fewer than 500 employees, certain federal offices and any public agency or any other entity that is not a private entity or individual, employing one or more employees.
Unlike the EFMLA, there is no minimum number of days an employee must be employed to be covered by the EPSLA.
The employer may elect to exclude certain health care providers or emergency responders from coverage under the EPSLA. “Health care providers” has the same meaning as defined in the traditional FMLA, which is:
1. A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices; or
2. Any other person determined by the Secretary to be capable of providing health care services (e.g. podiatrists, dentists, clinical psychologists, nurse practitioners, nurse midwives, clinical social workers, physician assistance, any health care provider from whom an employer or the employer’s group health plan ‘s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits).
The DOL has authority to issue regulations to exclude certain health care providers and emergency responders by allowing the employer of such health care providers and emergency responders to opt-out.

What Is Provided?

Full-time employees receive 80 hours of paid time, up to a daily and aggregate maximum amount dependent upon the reason for leave.
Part-time employees receive paid time equal to the number of hours that the employee works, on average, over a two-week period, up to a daily and aggregate maximum amount dependent upon the reason for leave. A separate rule applies to part-time employees with a varying schedule.
The employee shall receive pay not less than his/her regular rate of pay or the applicable minimum wage rate (whichever is greater) unless the leave is to care for an individual (as described below) or the employee’s son or daughter whose school has closed or child care provider is unavailable, then the pay is at two-thirds regular rate/minimum wage.

For What Reasons Can the Employee Use Sick Leave under EPSLA?

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 health care provider to self-quarantine due to concerns related to COVID-19.
The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
The employee is caring for an individual who is subject to a federal, state or local quarantine or isolation order or an individual who has been advised by a health care provider to self‑quarantine due to concerns related to COVID -19.
The employee is needed to care for the employee’s son or daughter if the school or place of care has been closed or the child care provider of such child is unavailable due to the COVID-19 precautions.
The DOL Regulations, mentioned above, may address other substantially similar conditions for coverage.
The term “son or daughter” has the same meaning as defined in the traditional FMLA.

Other Important Considerations

The employer may not require an employee to use other paid leave provided by the employer before the employee uses sick leave under the EPSLA, or use the EPSLA to diminish other existing rights of employees (including rights an employee has under any existing employer policy).
The DOL will be issuing a notice that must be posted with other required employee postings.
After the first day of leave under the EPSLA, an employer may require the employee to follow reasonable notice procedures as a requirement of continuing to receive sick leave pay under the EPSLA.
Unused EPSLA sick leave has no cash value and need not be paid out to the employee upon termination.
The DOL has authority to issue regulations exempting small businesses (less than 50 employees) from the EPSLA requirements if such requirements would jeopardize the viability of the business, as well as other regulations to ensure consistency between the various parts of the Emergency Families First Coronavirus Response Act.

Employer Tax Credits for Paid Family and Medical Leave and Emergency Paid Sick Leave

The new law provides social security payroll tax credits to covered private employers paying the newly required sick leave wages. The credit will be 100 percent up to $511 per day per employee using paid sick leave under the Emergency Paid Sick Leave Act for the specific purposes of complying with a quarantine or isolation order, self-quarantine on the advice of a health care provider or obtaining a diagnosis for symptoms of COVID-19. By contrast, the tax credit is limited to $200 per employee per day for those who are paid for time off under the Emergency Family and Medical Leave Expansion Act (to a maximum of $10,000 per employee). The $200 tax credit is also available for care for a child whose school or daycare is closed and the care for family members under the Emergency Paid Sick Leave Act.

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