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COVID-19 Emergency Leave

On Behalf of | Mar 23, 2020 | Firm News

Written by Jennifer Alexander


In response to the unprecedented spread of the Coronavirus (also known as COVID-19) and the immense impact this pandemic has had on the U.S. and world economies, the U.S. Senate passed the Families First Coronavirus Response Act (“FFRCA”) In addition to providing emergency funding for food service programs, unemployment benefits, and agency response funding, the included Family and Medical Leave Expansion Act and the Emergency Sick Leave Acts afford additional paid time off benefits for some eligible employees. These provisions go into effect April 2, 2020, and remain in effect through December 31, 2020.

Covered employers under the Acts include any employer with fewer than 500 employees. The U.S. Secretary of Labor, however, retains the authority to exempt or exclude small businesses with fewer than 50 employees where requirements of the Acts would jeopardize the business as a going concern. The Department of Labor has yet to issue any regulations limiting or clarifying the Acts’ coverage and application, but it is anticipated such regulations will be issued concurrently with the Act’s effective date. Under the Acts small businesses and some municipalities will incur new regulatory requirements, and be required to cover additional costs of absent employees, for absences related to the Coronavirus pandemic. Small businesses may be able recoup costs of leave through tax credits included in the bill.

The Emergency Family and Medical Leave Expansion Act

The expanded mandate under the Act now includes paid leave for a “Qualifying Need Related to a Public Health Emergency,” for eligible employees who are unable to work or telework due to the need to care for a son or daughter under the age of 18 whose school or place of care has closed, or where their caregiver is unavailable, due to coronavirus precautions. Eligible employees include those that have been employed for at least 30 calendar days. The first ten days of necessary leave may be unpaid, although the employee may elect to substitute other employer-provided paid leave, such as PTO, vacation or sick leave. The following 10 weeks of leave must be paid at 2/3rds the employee’s regular rate, up to a cap of $200.00 per day. After exhaustion of leave, or in the event the employee is able to return to work sooner, an employee is entitled to restoration to their position except where the employer has fewer than 25 employees, the position no longer exists due to Coronavirus, and the employer attempts to find an equivalent position.

It is important to note that other aspects of the Family Medical Leave Act (“FMLA”), providing for unpaid leave, continuation of benefits, and job restoration, in specific circumstances, remain intact and may also be applicable to eligible employees.

The Emergency Paid Sick Leave Act

Employers are also required by the Act to provide an additional 80 hours of paid leave (in excess of any paid leave policy in place) to full time employees who cannot work or telework for the following reasons:

1. A federal, state or local quarantine or isolation order related to coronavirus;
2. Direction from a health care provider to self-quarantine because of coronavirus;
3. Employee has symptoms of coronavirus and is seeking medical diagnosis;
4. Employee is caring for an individual subject to quarantine or isolation;
5. Employee is caring for a son or daughter whose school or place of childcare is closed, or childcare provider is unavailable, due to coronavirus precautions;
6. Employee is experiencing substantially similar or related conditions as may be recognized by Secretary of Health and Human Services.

The amount of pay required for eligible leave is capped at $511.00 per day (or $5111.00 for the two-week period of 10 working days) for leave taken for reasons 1-3, and capped at $200.00 per day (or $2000.00 for the two-week period) for reasons 4-6. Part-time employees may be paid on pro-rata basis.

Related Legislation and Continuing Developments

As noted above, additional legal guidance and coronavirus-related legislation is likely to be forthcoming. When making employer leave or separation decisions, employers must carefully consider the rapidly changing landscape in the context of governmental orders, public health directives, and other related employment laws including OSHA, Worker’s Compensation, the Americans With Disabilities Act, the Workers Adjustment and Notification Act (relating to layoffs) and State and Federal Wage and Hour laws.

BHBC is actively monitoring events that may impact the legal obligations and business decisions of our clients, and remains available to assist in navigating any new developments. If you have any questions, do not hesitate to contact us.