Employer Alert: FMLA Expansion and Paid Leave Requirements in Light of Coronavirus

Today the Senate approved the Families First Coronavirus Response Act, which addresses many of the questions employers have about what they can – and must – do in light of the coronavirus pandemic.  President Trump is expected to sign the Bill into law immediately, providing employers guidance on handling Coronavirus-related leave requests.  Answers to many of the anticipated questions are as follows:

What does the legislation provide?

• The Emergency Family Medical Leave Expansion Act will temporarily amend the FMLA to extend coverage to more employers and to lower the eligibility requirements for employees.  Employers not previously covered by the FMLA may have to provide partially paid job-protected leave for qualifying reasons. 
• The Emergency Paid Sick Leave Act will require employers with fewer than 500 employees to provide 80 hours of paid sick leave (in addition to that which is already provided by other statutes and employer sponsored plans) for certain COVID-19 related reasons. 

THE EMERGENCY FAMILY MEDICAL LEAVE EXPANSION ACT

What are qualifying needs under the Emergency Family and Medical Leave Expansion Act?

• A qualifying need under the Emergency Family and Medical Leave Expansion Act is an inability 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.

Who will be covered under the Emergency Family and Medical Leave Expansion Act?

• Any employee who has been employed for at least 30 calendar days by an employer that has fewer than 500 employees. Note that employers with fewer than 50 employees who are not otherwise covered by the FMLA may be covered by this expansion unless an exemption applies.

Are employees entitled to job restoration upon return?

• Yes. However, employers with fewer than 25 employees may not be required to restore an employee to their position held at the time leave commenced, when the employee’s position is eliminated due to economic or certain operational conditions.  Though, employers must make reasonable efforts to restore the employee to an equivalent position, and must contact employees for one year if an equivalent position becomes available.

Are there exceptions?

• The Secretary of Labor will have authority to issue regulations for good cause to exclude:
  • Small businesses with fewer than 50 employees when compliance with the law would jeopardize the viability of the business as a going concern; and
  • Certain health care providers and emergency responders from the definition of eligible employee.

Do employers have to pay employees on the Emergency Family and Medical Leave Expansion Act?

• The first 10 days of leave under the Emergency Family and Medical Leave Expansion Act may be unpaid (employees may choose to use accrued vacation leave, personal leave, or medical or sick leave, but cannot be required to do so). Beyond the initial 10 days, employers must pay at least two-thirds of an employee’s regular earnings, calculated by using the employee’s regular rate of pay (as defined in the Fair Labor Standards Act (“FLSA”)), and number of hours the employee would normally be scheduled to work (a formula for variable employees is provided).  In no event shall such paid leave exceed $200 per day and $10,000 in the aggregate.

THE EMERGENCY PAID SICK LEAVE ACT

Who is eligible for pay under the Emergency Paid Sick Leave Act?

• Any employee, regardless of duration of employment.

Are there exceptions?

• Employers with more than 500 employees are exempted from the paid-leave requirement.
• Unlike the Emergency FMLA, there is not a small business exemption for employers with less than 50 employees to avoid the 2-week paid leave requirement under the Emergency Paid Sick Leave Act.

When are employees entitled to paid sick leave under the Emergency Paid Sick Leave Act?

• Employers must provide leave under the Emergency Paid Sick Leave Act for the following reasons:
  • 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 seeking a medical diagnosis;
  • The employee is caring for an individual who is subject to a local quarantine or isolation order, or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The 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; or
  • 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.

How much are employers required to pay employees under the Emergency Paid Sick Leave Act?

• 80 hours for full time employees, and for part-time employees, the average number of hours the employee works on average in a 2-week period.
• Paid sick time under this section does not carry over from 1 year to the next.

How does this impact leave available under Michigan’s Paid Medical Leave Act, or from other sources?

• Employees may not be required to use other paid leave provided by the employer before the employee uses the paid sick time under this Act.

 WHAT ELSE SHOULD EMPLOYERS KNOW?

• A refundable tax credit equal to 100 percent of sick leave wages paid by an employer will be available to employers as well as a refundable tax credit equal to 100 percent of the qualified family leave wages paid, in accordance with the respective laws.
• Model notice(s) will be made available by the Secretary of Labor within 7 days of the enactment of the Emergency Paid Sick Leave Act. Employers will be required to post a notice either prepared or approved by the Secretary of Labor, notifying employees of the requirements described in the Emergency Paid Sick Leave Act.
• Once this bill is enacted, employers with fewer than 500 employees will be required to comply with its requirements within 15 days.