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Coronavirus (COVID-19) Paid Family Leave and Paid Sick Leave Laws: What Employers Need to Know

March 19, 2020

By: Rachel D. Gebaide & Morey Raiskin

President Trump signed into law the Families First Coronavirus Response Act, which includes the Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act.

This article includes the key points in the final versions of these leave laws, which are materially different from last weekend’s bill.

Employers have 15 days, or until April 2, 2020, to update their FMLA and sick leave policies to comply with these new mandates.

Emergency Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act (the “Act”) expands the FMLA to add one (1) new qualifying reason for leave related to the coronavirus and to provide partial paid leave for such leave (the “coronavirus-FMLA leave”). Coronavirus-FMLA leave may be taken beginning on the date the Act takes effect (which shall be no later than 15 days after the date of enactment) and ending on December 31, 2020.

Who is Covered?

The Act applies to all employers with fewer than 500 employees.

An employee is eligible for coronavirus-FMLA leave if the employee has been employed for at least 30 calendar days by the employer from which the employee is requesting the leave.

What Qualifies for Coronavirus-FMLA leave?

The scope of employees who qualify for coronavirus-FMLA leave is much smaller than the original version of the bill. Now, the only qualifying reason for paid coronavirus-FMLA leave is if the employee is unable to work (or telework) because the employee needs to care for the employee’s son or daughter under 18 years of age if the son or daughter’s school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to the COVID-19 public health emergency declared by a federal, state, or local authority. In that event, the employee may take up to 12 weeks of coronavirus-FMLA leave.

Is Coronavirus-FMLA leave A Paid Leave?

Yes and no. Employers must pay employees for a portion of coronavirus-FMLA leave as follows:

  1. The first 10 days of coronavirus-FMLA leave may consist of unpaid leave. Employees may elect to substitute accrued vacation leave, personal leave, or medical or sick leave for the unpaid leave.
  2. After the first 10 days of coronavirus-FMLA leave:
    • Employers shall provide paid coronavirus-FMLA leave at no less than two-thirds (2/3) of an employee’s regular rate of pay based on the number of hours the employee would otherwise be normally scheduled to work or, for variable hour employees, based on a formula provided in the Act; and
    • The paid leave is capped at $200/day and $10,000 in the aggregate, per employee.

Other Significant Considerations:

  1. If an employee foresees the need for coronavirus-FMLA leave, the employee shall provide the employer with such notice if practicable.
  2. The Secretary of Labor has the authority to issue regulations to:
    • Exclude certain healthcare providers and emergency responders from the definition of “eligible employee” under the Emergency Family and Medical Leave Act; and
    • Exempt small business with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business as a going concern.
  3. Employers with fewer than 25 employees may be excused from restoring an employee who has taken coronavirus-FMLA leave to the employee’s positon or to an equivalent position upon certain conditions.
  4. An employer of an employee who is a healthcare provider or an emergency responder may elect to exclude such employee from the Emergency Family and Medical Leave Expansion Act.
  5. Coronavirus-FMLA leave runs concurrent with traditional FMLA leave. Coronavirus-FMLA leave is not 12 weeks in addition to the 12 weeks (or 26 weeks) of leave provided under traditional FMLA.
  6. An employee may not bring a civil action against an employer because of the employer’s alleged violation of the Emergency Family and Medical Leave Act. The Secretary of Labor may enforce the law against employers through administrative and/or civil actions.

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act (the “Act”) requires all employers to provide paid sick time (“Emergency Paid Sick Leave”) to each of its employees.

The Act will take effect no later than 15 days after its enactment and will expire on December 31, 2020.

When Must an Employer Provide Emergency Paid Sick Leave?

Employers must provide paid sick time to an employee who is unable to work (or telework) because:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
  5. The employee is caring for the employee’s son or daughter if the son or daughter’s school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
  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.

Note: An employer of an employee who is a healthcare provider or an emergency responder may elect not to provide paid sick leave to such employee pursuant to the Emergency Paid Sick Leave Act.

How Much Emergency Paid Sick Leave Must an Employer Provide?

Emergency paid sick leave is calculated as follows:

  1. Full-time employees are entitled to 80 hours.
  2. Part-time employees are entitled to the average number of hours worked over a two-week period.

    Note: the Act does not identify which two-week period the employer must use to calculate part-time emergency paid sick leave. The Department of Labor is tasked with issuing guidelines within 15 days after enactment.

  3. An employee using emergency paid sick leave under the Act pursuant to (a), (b) and (c) above must be paid at the employee’s regular rate of pay; however, sick leave is capped at $511 per day and $5,110 in the aggregate.
  4. An employee using emergency paid sick leave under the Act pursuant to (d), (e) and (f) above must be paid at no less than two-thirds (2/3) the employee’s regular rate of pay; however, sick leave is capped at $200 per day and $2,000 in the aggregate.

Other Significant Considerations:

  1. Emergency paid sick leave shall be available immediately regardless of how long the employee has been employed by the employer.
  2. Employees may but are not required to use emergency paid sick leave under the Act before using any other paid leave benefits provided by the employer.
  3. Emergency paid sick leave under the Act does not carry over from year to year and is not paid out upon the employee’s termination from employment for any reason.
  4. The Secretary of Labor will issue a model notice regarding employee rights under the Act within seven (7) days after enactment. Employers must post the notice in a conspicuous place where notices to employees are customarily posted.
  5. The Secretary of Labor has the authority to issue regulations to:
    • Exclude certain healthcare providers and emergency responders from the definition of “eligible employee” under the Emergency Family and Medical Leave Act; and
    • Exempt small business with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business as a going concern.
  6. Employers may not take an adverse action against an employee who takes leave under the Act or who files a complaint relating to the Act.
  7. Enforcement: Employers who violate the Act shall be considered to have failed to minimum wages under the Fair Labor Standards Act and are subject to the same penalties.

Final Note About H.R. 6201:

In addition to other provisions to help the nation’s workers and their families, the Families First Coronavirus Response Act provides tax credits relating to the requirements that employers provide paid coronavirus-FMLA leave and emergency paid sick leave. Employers should consult with their tax advisors about this credit.

Lowndes will provide updates on other coronavirus-related employment legislation that may be enacted in the coming weeks and months.

For up-to-date news please follow our Coronavirus (COVID-19) Response Team page.


This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Rachel

Rachel D. Gebaide is a member of the firm’s Executive Committee and chair of the Labor and Employment Law Group. She is an experienced employment litigator and adviser, counseling companies in the management of their human resources issues.


Rachel regularly represents employers in federal and state courts and before administrative agencies in defending against claims involving allegations of employment discrimination and violations of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and other employment laws. She also defends discrimination claims arising under the Fair Housing Act.  

In addition to her litigation practice, Rachel drafts and reviews employee handbooks, employment agreements, non-competition agreements, separation agreements, and other personnel documents. She regularly advises clients regarding workplace issues and compliance with the FMLA, FLSA, WARN Act, the Affordable Care Act, and other employment laws. Rachel also has extensive experience in conducting independent investigations. 

A frequent speaker, Rachel often writes articles on developing issues in labor and employment law for client-focused publications, legal industry news outlets, and the firm’s employment law blog

Rachel is a member of the Labor and Employment Law Sections of the American Bar Association and the Federal Bar Association. She is also a member of the Orange County Bar Association, having served as Chair of the Labor and Employment Law Committee. Rachel is active in the Litigation and Employment Law Group of Meritas, a global alliance of independent law firms. 

She also serves as Executive Vice President of Congregation Ohev Shalom and Vice President, Legal of TOP Jewish Foundation. 

Morey

A Florida Supreme Court Certified Circuit Civil Mediator, Morey Raiskin works in the firm’s Labor & Employment Group.


Over the past 38 years, Morey has represented management of both large and small employers. He has successfully litigated cases in state and federal courts and represented clients in administrative proceedings involving the EEOC, DOL and FCHR. Morey also serves as an advisor to his clients, counseling them on virtually any workplace issue they may confront.

Morey develops non-compete and employment agreements, personnel policies, employment application forms, employee handbooks, and counsels clients on wage and hour, discrimination, WARN Act planning and union avoidance strategies. He litigates these same issues in state and federal courts or in administrative proceedings before the EEOC, U.S. Department of Labor or the Florida Commission on Human Relations.

Morey began practicing law in Las Vegas, Nevada, before moving to Orlando in 1984. In 1986, he accepted an in-house opportunity with a diversified publisher, Harcourt Brace Jovanovich, eventually becoming Lead Labor and Employment Counsel and Administrative Vice President of its wholly-owned subsidiary, Sea World. In 1990, Morey returned to private practice and has served in a myriad of roles, including as a shareholder and chair of the Labor and Employment Law Group at Lowndes from 1990—2012.


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