Blog: The California Workplace Advisor

On Wednesday night, March 18, 2020, President Trump signed into law emergency legislation addressing the impact of the COVID-19 pandemic, which includes provisions expanding leave and paid sick leave for employees. The final legislation is somewhat narrower than the bill originally passed by the House to address concerns about its impact on small businesses.

Below are highlights of the parts of the bill most applicable to the employer/employee relationship.

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT
The bill temporarily expands the Family and Medical Leave Act to all employers under 500 employees and nearly all employees, and now covers absences from work due to school or childcare closures occasioned by COVID-19. The leave entitlement is up to 12 weeks of leave in a 12-month period.

Coverage and eligibility:

• Applies to employers with less than 500 employees
• Applies to employees with at least 30 days of employment at the employer

Reasons for leave: Limited to child care, applying to the COVID-19 public health emergency when the employee needs to care for a child under 18 whose school/childcare is closed due to the public health emergency.

Pay, benefits and reinstatement

• First 10 workdays may be unpaid, during which employee may use sick or vacation (including the paid sick leave provided under the next part of the law, the Emergency Paid Sick Leave Act).
• For the remaining 10 weeks/50 workdays of FMLA leave, employers must provide paid leave at 2/3 of the employee’s regular rate of pay, up to a maximum of $200 per day, or $10,000 in the aggregate.
• For less than full-time, the pay would be prorated to reflect the time the employee is regularly scheduled to work.
• As under regular FMLA, during leave employees are entitled to continued medical benefit coverage and are guaranteed reinstatement to the same or similar position at the end of leave, subject to certain exceptions, including for small employers of under 25 employees who eliminated the position and attempt to reinstate within one year.

Exceptions: 

• Health care providers and emergency responders may exempt their employees from these extended leave rights
• The U.S. Department of Labor (DOL) can issue regulations exempting employers with less than 50 employees when the imposition of such a law would jeopardize the viability of the business as a going concern, or to exempt health care providers and/or emergency responders.
• There can be relief to the right to reinstatement if the employer has fewer than 25 employees, under certain circumstances.

Effective dates:

• The new law would take effect within 15 days after enactment.
• Sunsets (expires) on December 31, 2020.

EMERGENCY PAID SICK LEAVE ACT
The bill requires covered employers to provide two weeks of paid sick leave immediately for use during coronavirus-related absences.

Coverage and eligibility:

• Applies to all employers with less than 500 employees.
• All employees are eligible; no minimum time working at the employer for the employee to qualify.

Reason for Usage: Emergency paid sick leave can be taken for the coronavirus public health emergency when the employee is unable to work due to:

• The employee being subject to a federal, state, or local quarantine or self-isolation order related to COVID-19.
• The employee has been directed by their health care provider to self-isolate.
• The employee has been experiencing symptoms of COVID-19 and is seeking a diagnosis.
• The employee is caring for an individual who is subject to such a quarantine or self-isolation order, or who has been advised by their health care provider to self-isolate.
• The employee is caring for a child under 18 whose school, care provider, or paid childcare closes due to public health emergency.
• The employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services (HHS).

Emergency Paid Sick Leave Entitlement

• 10 days of paid sick leave
• Sick leave for the employee’s own illness or isolation (under bullets 1-3 above) is paid at 100% of the employee’s regular rate, up to a maximum of $511 per day, or $5,110 in the aggregate.
• Sick leave when caring for an individual under bullet 4 above, or when unable to work due to the closure of the child’s school or childcare provider under bullet 5, or for a reason specified by HHS, is paid at 2/3 of the employee’s regular rate, up to a maximum of $200 per day or $2,000 in the aggregate.
• 80 hours of pay for a regular full-time employee. Prorated for part-time.
• Employer cannot require use other accrued sick or vacation time before use of emergency paid sick leave days.

Exceptions:

• Health care providers and emergency responders may exempt their employees from these extended leave rights.
• The DOL can issue regulations exempting health care providers and/or emergency responders.

Other Provisions

• The employer must post a Notice regarding this law. The DOL shall issue a sample Notice.
• Tax credits are available to employers for emergency paid sick leave wages.

Effective Dates

• Takes effect within 15 days after the enactment.
• Sunsets (expires) on December 31, 2020.

If you have any questions about the impact of this new law on your business, please contact partners John Baum at (415) 835-9006, jbaum@hkemploymentlaw.com or Felicia Reid at (415) 835-9024, freid@hkemploymentlaw.com.