In plain English, here’s what the House just greenlit for emergency FMLA and paid sick leave


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What a week it was! I spent it providing coronavirus counseling out the wazoo, while reading more COVID-19 legal updates than I thought were possible, including me posting on Saturday. Saturday!?!

But, ICYMI, just after midnight on Saturday, the House passed a revised version of the Families First Coronavirus Response Act with approval from President Trump. Federal emergency FMLA and paid sick leave are practically here.

Within this 110-page bill are a few sections that may be of interest to you:

  • “Division C – Emergency Family and Medical Leave Expansion Act”
  • “Division E – Emergency Paid Sick Leave Act”
  • “Division G – Tax Credits for Paid Sick and Paid Family Medical Leave”

Now, let’s break ’em down.

But first, as I foreshadowed last week and confirmed on Saturday, I will be on Facebook Live tomorrow (Tuesday) at Noon (Eastern) discussing this bill, as well as other issues facing employers dealing with COVID-19.
If you have any questions, email me today. Not only do I hope to answer them for you, but I’ll try and do so without saying “it depends,” which we all know is impossible since I’m a lawyer. Also, we’re not creating attorney-client privilege, you and I. And I’m not providing specific advice, legal or otherwise.
But, if you still want to attend, the Facebook Live chat will be here ( starting at noon Eastern on Tuesday.

Eric, before you break down the House bill, is it possible that the final law could look different?

It sure could. The Senate may take up the House bill as soon as today. Although CNBC reported yesterday afternoon that the Senate had yet to schedule a vote.

But, when it happens, here’s what the Senate might do:

  1. Approve the bill, as is, which would then send it to President Trump to sign.
  2. Change the bill and return it to the House, which is out of town for the week.
  3. Reject the bill altogether.

So, the breakdown below assumes that Number 1 happens. If it’s number 2 or 3, guess I’ll have to do another blog post. Joy!

But, for now…

Eric, what do I need to know about the Emergency Family and Medical Leave Expansion Act?

Business coverage: If you operate a private-sector business with 500 or more employees, you can skip this section. Indeed, you can skip the rest of this post. Because emergency FMLA (and paid sick leave) covers only government employers and companies with fewer than 500 employees — even ones with fewer than 50 employees. However, the Secretary of Labor may later exempt businesses with fewer than 50 employees when providing such leave might close the business altogether.

Employee eligibility: Employees that have been working for at least 30 calendar days. Consecutive days? Unclear. Does the employee need to satisfy the traditional FMLA eligibility requirements (1 year of employment, 1,250 hours worked in the 12 months before taking leave, one of 50 employees working within 75 miles)? That’s a hard no.

Leave entitlement: 12 weeks, just like any other kind of FMLA.

Reasons for taking emergency FMLA include: There are three reasons, which I’ll describe in broad terms.

  • To adhere to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus;
  • To care for an at-risk family member who must quarantine due to exposure to or symptoms of coronavirus; and
  • To care for a child of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to a coronavirus.

Intermittent leave: Unclear. The original draft of the Act prohibited intermittent or reduced leave schedule except in limited circumstances. The version of the bill that the House passed says nothing about intermittent or reduced leave schedules. I think both are now technically in play. Although, realistically, how often will that be an issue?

This is usually paid leave:

  • The first 14 days of emergency FMLA leave are unpaid, except when the employee elects to run accrued PTO concurrently. (Unlike other forms of FMLA leave, the employer may not require this.)
  • After two weeks, employees get paid at least two-thirds of the employee’s usual pay.

Notice requirement: As much as is practicable.

Reinstatement rights: The default FMLA rules apply, except with employers that have fewer than 25 employees if certain conditions are met.

Effective date: 15 days after President Trump signs the bill.

Sunset: December 31, 2020.

Eric, what do I need to know about the Emergency Paid Sick Leave Act?

Business coverage: Once again, only government employers and companies with fewer than 500 employees. (Sorry, NYT.)

Employee eligibility: All current employees, regardless of days of service.

Leave entitlement: 2 weeks of paid leave (80 hours for full-time, pro-rata for part-timers)

Reasons for paid sick leave: Again, this is in broad terms.

  1. To quarantine/self-isolate because of diagnosed coronavirus
  2. To seek a diagnosis or preventative care for coronavirus symptoms
  3. To comply with a recommendation or order from public official or health care provider that an employee shouldn’t be at work because of coronavirus factors
  4. To care for a family member for similar coronavirus-related reasons as outlined above
  5. To care for a child whose school has closed, or childcare provider is unavailable, due to coronavirus

Amount of pay: Companies must pay an employee taking leave for any of the first three reasons listed above at his/her regular rate of pay. When an employee takes paid sick leave for a family member or child, s/he gets paid at two-thirds the employee’s regular rate.

If you already have a PTO policy: The employee gets paid sick time under the new law in addition to any PTO in the bank. Put simply, the leaves run consecutively, Although, it is not clear whether emergency paid sick leave runs concurrently or consecutively with emergency FMLA. But, I do know that a company cannot change its own PTO rules after this goes into law. Further, an employer may not require the employee to identify a replacement employee to cover his or her shift while taking sick leave.

Call out rules: Yes, you can apply them.

Notice: The Secretary of Labor is working on a poster. When he’s done, companies must post it in the workplace.

Discrimination and retaliation: Don’t do it.

Violations: It’s like not paying minimum wage under the FLSA, which never ends well.

Effective date: 15 days after President Trump signs the bill.

Sunset: December 31, 2020.

Paid sick leave carryover into 2021: Fuggedaboudit. No post-employment payout of any remaining balance either.

Eric, what do I need to know about tax credits?

Well, I’m not a tax lawyer, I don’t play one on tv, and I didn’t stay at a Holiday Inn Express last night. However, I did read that the new law provides a refundable tax credit equal to 100 percent of qualified paid sick and family leave wages an employer pays for each calendar quarter. There are even tax credits available for self-employed individuals too.

Additionally, yesterday, the Wall Street Journal reported (here) that “Treasury Secretary Steven Mnuchin said his agency would advance funds to businesses so they can meet paid sick-leave requirements….In a statement late Saturday night, Mr. Mnuchin said employers will be able to use cash deposited with the Internal Revenue Service to pay sick-leave wages. For businesses that wouldn’t have sufficient taxes to draw from, the Treasury would make advances to cover the costs, he said.”

So, this will get us started heading into tomorrow’s chat on Facebook Live at Noon (Eastern). Don’t forget to email me your questions before then. Cross your fingers that I can pull this off.

Either way, I’ll be back tomorrow morning with a Tuesday blog post.

“Doing What’s Right – Not Just What’s Legal”
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