Paid leave Act Passed by Congress & Other Coronavirus Updates

Paid Leave Bill Passed by House and Senate

The Families First Coronavirus Response Act (HR 6201) passed Congress with bipartisan support and was signed by President Trump on March 18th.

Temporary FMLA Expansion – “Emergency Family and Medical Leave Expansion Act”

Congress amended the Family and Medical Leave Act (FMLA). Employees are eligible for paid FMLA for coronavirus-related childcare disruption through December 31, 2020. Here are the important temporary changes to normal FMLA qualifying criteria:

• Employees need to be employed for at least 30 days (as opposed to 1 year).
• It temporarily expands the “employer” definition to any employer with less than 500 employees (as opposed to 50 or more employees within 75 miles).
• Eligible reasons for FMLA leave now include care for minor child(ren) if their school or place of care is closed or unavailable and telework is unavailable.
• The first 10 days of coronavirus FMLA leave are unpaid, unless the employee voluntarily elects to use available paid leave of the paid sick leave described below. Employees are then paid at a rate of 2/3 their regular rate for the hours that the employee would have worked (or their normal salary), up to a cap of $200 per day and a total of $10,000. (There are provisions for calculating the regular hours for employees with variable schedules.)
• Job restoration is required after FMLA leave for employers with at least 25 employees, subject to a few exceptions.
• A notice poster is required, available here.

Employees who have already exhausted FMLA may still take the full 10 weeks of COVID-19 FMLA; however, COVID-10 FMLA will count against future regular FMLA.

Employers may force employees taking 10 weeks of COVID-19 FMLA to supplement the 1/3 of unpaid time with available paid time off, until employer-provided paid time off is exhausted.

Federal Paid Sick Leave – “Emergency Paid Sick Leave Act”

Congress also passed paid sick pay, which applies to employers with less than 500 employees. Employees are eligible for 80 hours (or the pro rata amount for part time employees based on their average schedule over a two-week period) of paid sick leave, provided the employee is unable to telework. There is no minimum length of employment to qualify. Sick leave is available for the following reasons, regardless of the employee’s length of employment:

1. To comply with a federal, state, or local quarantine or isolation order related to COVID-19;
2. To comply with advice of a healthcare provider to self-quarantine due to concerns related to COVID-19;
3. Because the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
4. To care for a family member who is subject to a quarantine or isolation order or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
5. To care for the child of the employee if the school or place of care is closed or otherwise unavailable because of COVID-19 precautions; and
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.

The paid leave is calculated at the employee’s regular rate of pay, up to $511 per day and $5110 in the aggregate for the employee’s own illness or quarantine (reasons 1, 2, and 3, above), and for reasons 4, 5, and 6, 2/3 of the employee’s regular rate of pay, up to $200 per day and $2000 in the aggregate. Healthcare workers and emergency responders are exempt if they are needed to provide services to COVID-19 patients.

What is critical for employers to understand is that this new paid sick leave must be IN ADDITION to existing paid leave. Employers are not permitted to amend their existing paid leave policy to avoid providing federal paid sick leave, and employers may not require employees to use other paid leave before using it.

Intermittent FMLA or sick leave is only available for teleworking employees, with the employer’s consent. The FMLA leave for caregiving may be taken intermittently if the employer agrees. For example, an employer could agree to partial days worked through teleworking and partial days as COVID-19 FMLA, or an employer could agree to 2 of 5 days spent teleworking and 3 of 5 days as COVID-19 FMLA. The same is permitted of the 80 hours of sick pay, provided it is spent teleworking or used for taking care of children whose schools or daycares are closed. If the employee takes sick leave from reporting to the workplace because of illness, caregiving for a sick family member, or quarantine, intermittent leave is not allowed because it would expose other employees to possible COVID-19.

Self-quarantine sick leave is not available if the employee decides not to work due to fear of contracting the coronavirus. An employee must have a doctor order self-isolation due to an underlying health condition placing the employee at increased risk of COVID-19 complications. Compliance with a state shelter-in-place or stay-at-home order is sufficient to take paid leave, unless the employee has been designated as essential to an essential business.

How does this apply to your workplace?

If you have less than 500 employees: Both the new FMLA and paid sick leave apply to you. Employers with less than 50 employees are exempt from the FMLA leave requirement if providing it would jeopardize the viability of the business as a going concern.

If you have 500 or more employees: None of this applies to you, but more may be coming in the coming weeks. It is unclear why large employers were left out, other than speculation that most large employers already provided paid leave. Expanded unemployment may be an option.

The employee calculation uses the “integrated employer” test under the FMLA. So, however an employer calculates total employees for FMLA purposes is how an employer calculates total employees for this emergency paid leave law, except that establishments are not separately counted.

Employees who are laid off or whose workplaces are closed are not eligible for sick pay or COVID-19 FMLA. They must rely on unemployment.

Paid sick leave will fully compensate employees earning a little over $132,000 a year for that two-week period of paid sick leave. The paid FMLA will compensate employees earning approximately $78,000 a year at 2/3 pay for the 10-week paid period. To defray the costs of the paid sick leave and the new FMLA, employers will receive a 100% tax credit (against social security tax) for all money paid for paid sick leave.

In addition, employees cannot be required to find their replacement, and there are non-discrimination and non-retaliation provisions under the FMLA and FLSA for each new paid leave provision. Employers violating each of these new paid leave provisions face the penalties for violations of the FMLA (for the expanded FMLA) and FLSA (for the paid sick leave), respectively.

This law took effect on April 1 and is now being enforced. There is a fact sheet for employees, fact sheet for employers, and Q&As.

Temperature Checks and Medical Inquiries of Employees and Applicants

Most employees are working from home (if that is an option) by now. Ordinarily, employers may not check employees for illness. For example, requiring employees to submit to temperature checks would be considered a prohibited “medical examination” under the Americans with Disabilities Act (ADA). However, given the global pandemic and local spread to most areas, temperature checks are permitted. Employers may also ask employees if they are experiencing fever, chills, cough, shortness of breath, or sore throat. In addition, in Ohio, Governor Mike DeWine advised all employers to take the temperature of employees at the start of work for those employees who are still required to report to work in person. Of note, however, not all employees infected with COVID-19 have a fever. Updated EEOC guidance is available here.

Employers are permitted to reject applicants (after making an offer of employment) for COVID-19 related symptoms, as long as the rule is uniformly followed.

Government Closures and Effect on Deadlines

The Equal Employment Opportunity Commission (EEOC), National Labor Relations Board (NLRB), and Ohio Civil Rights Commission (OCRC) have closed all offices. In person filings are no longer permitted. Where deadlines are an issue, online submission is encouraged, and for charge filings, telephone interviews will take the place of in-person intake. Thus far, extensions of the 180/300 day requirements for charges are not being granted.