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Click here for a pdf version of this report

 

This Act, which was passed by the House and Senate, and signed by President Trump on March 18, 2020, has 8 “divisions”.

This report only addresses the two divisions that directly apply to employers. (The other divisions pertain to employer tax credits, the healthcare industry, and various appropriations – for the complete description, click here).

 

The Act provides for two paid leaves that employers with 1-499 employees must provide to employees.  The Act is effective on April 2 and expires on December 31.

 

The leaves are:

• Emergency Paid Sick Leave Act; and

• Emergency Family and Medical Leave Expansion Act.

 

Emergency Paid Sick Leave Act (EPSLA)

All employees are covered, although there are specific carve outs for certain health care workers and first responders.

 

Amount of Leave:

• Full time employees receive 80 hours of paid leave at their regular rate of pay
   

• Part-time employees receive the average number of hours worked over a two-week period – or, if the employee works a variable schedule, it is the average number of hours they worked per day over the previous six months. If the employee has not worked this long, it is the reasonable expectation of the employee at the time of hire of the average number of hours per day the employee would normally be scheduled.

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Covered Reasons For Leave

 

1. Employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19

 

              [The employee’s regular rate of pay applies, with a cap of $511 per day; $5,110 aggregate]

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2. Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19

              [The employee’s regular rate of pay applies, with a cap of $511 per day; $5,110 aggregate]

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3. Employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

              [The employee’s regular rate of pay applies, with a cap of $511 per day; $5,110 aggregate]

 

4. The employee is caring for an individual who is subject to an order as described in (1) or has been advised as described in (2).

             [2/3 of employee’s regular rate of pay applies, with a cap of $200 per day; $2,000 aggregate]

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5. Employee 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 child care provider of such son or daughter is unavailable, due to COVID–19 precautions.

            [2/3 of employee’s regular rate of pay applies, with a cap of $200 per day; $2,000 aggregate]

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6. The employee is experiencing 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.

           [2/3 of employee’s regular rate of pay applies, with a cap of $200 per day; $2,000 aggregate]

 

Note the first provision - (1). This likely impacts areas, like the Bay Area, where “shelter in place” orders are in effect, or about to go into effect.

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Employers cannot require employees to use any other leave prior to using the Emergency Paid Sick Leave.

 

Notice requirements: Employers must post a notice in conspicuous places on the premises of a notice to be prepared by the Secretary of Labor.  The Secretary of Labor has 7 days after the enactment of the Act to make the notice publicly available.

 

The Act cannot not diminish the rights or benefits of employees provided under any other Federal, State, or local law, collective bargaining agreement, or existing employer policy.

 

Employers are not required to pay out any unused Emergency Paid Sick Leave at the end of employment.

 

Emergency Family and Medical Leave Expansion Act (EFMLEA)

 

This act amends the federal Family and Medical Leave Act (FMLA).  Any employee who has been employed for at least 30 calendar days is eligible, and the act applies to all businesses with 1-499 employees.

 

However, businesses with less than 50 employees may be exempt from the Act’s paid leave requirements when “the imposition of such requirements would jeopardize the viability of the business as a going concern”

 

The Act requires these employers to provide paid family medical leave for each day of leave an employee takes (after 10 days of unpaid leave),

 

Qualified reasons for paid FMLA leave: When the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency (with respect to a COVID-19 declared by a Federal, State, or local authority), the employee may take up to 12 weeks of leave.

 

Amount of paid leave:

• First 10 days may be unpaid (but employee may use other paid leaves during this time)

• Paid at no less than two-thirds of the employee’s regular rate of pay and the number of hours the employee would normally be scheduled to work for up to 12 weeks.

• Paid leave shall not exceed $200 per day and $10,000 in the aggregate.

 

Reinstatement rights:  Employees are entitled to reinstatement to the same position or an equivalent position, unless the employer employs fewer than 25 employees.  In that case, the employer must make reasonable efforts to provide the employee with a position or an equivalent position for 1 year after the “public health emergency concludes” or 12 weeks after commencement of the leave, whichever is earlier.

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Exclusions: The Secretary of Labor has authority to issue regulations for good cause to exclude certain health care providers and emergency responders, and to exempt small businesses with few than 50 employees if requirements would “jeopardize the viability of the business as a going concern.”

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Final Notes

For California employers, it’s highly likely the state’s Labor & Workforce Development Agency will weigh in with guidance. They have an excellent, updated website for resources for employees and employers: https://www.labor.ca.gov/coronavirus2019/.

 

And as always....

There are many more laws that impact your business.  That's why we're here!  Make sure to contact RSJ/Swenson's team of Human Resources specialists to make sure you're always in compliance.

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