Effective April 2, 2020, employers are faced with significant changes to employee leave and paid sick leave laws related to the coronavirus (COVID-19). There are two new Acts that will affect your business in particular:
1. Emergency Family and Medical Leave Expansion Act
This Act changes the scope and application of the Family Medical Leave Act (FMLA). The Act now applies to employers with less than 500 employees and replaces the old requirement that one had to have 50 employees for the FMLA to apply. An employee may be eligible if the employee has worked at least 30 days for the employer.
The Act expands leave rights to employees who are unable to work because they have to take care of a son or daughter under the age of 18, because the school or place of care has been closed or unavailable due to COVID-19 issues.
The first 10 days of the leave may not be paid leave, but the employee can elect to substitute any accrued vacation leave, personal leave, or sick leave for unpaid leave.
After the first 10 days of leave, the employer must pay the employee at least two-thirds of the employee’s regular rate of pay for the rest of the leave period. The paid leave may not exceed $200 per day and $10,000 in the aggregate.
Normally, under the FMLA, there is a right to be restored to the position that you had before you left to go on leave. This Act provides an exception to employers who employ fewer than 25 employees under certain circumstances.
2. Emergency Paid Sick Leave Act
An employer is required to provide paid sick leave to employees who are unable to work because of reasons associated with COVID-19. This includes employees who have been ordered to quarantine; advised by healthcare provider to self-quarantine; are seeking medical diagnosis for symptoms of COVID-19; are caring for an individual ordered or advised to quarantine; or are caring for a son or daughter whose school has been closed due to COVID-19 precautions.
Full-time employees are entitled to 80 hours of paid sick time. Part-time employees are entitled to a number of hours equal to the number of hours that the employee works on average over a two-week period.
Generally, the paid sick leave must be paid at the employee’s regular rate except if it is for the care of a family member, in which case it can be paid at two-thirds of the employee’s regular rate of pay.
This Act places a cap of $511 a day and at least $5,110 in the aggregate for leave needed for self-care. There is a cap of $200 per day and $2,000 in the aggregate for leave needed to care for a family member.
Employers are required to post a notice approved by the Secretary of Labor on the premises in a conspicuous place. This poster is yet to be made available.
Employers who violate this Act or discharge, discipline or discriminate in any other manner against an employee who takes leave under the Act, or retaliates against an employee who has complained about such matters, will be subject to penalties under the Fair Labor Standards Act.
These new laws will have significant impact on employers from April 2, 2020 when they take effect. Both Acts are currently scheduled to end on December 31, 2020. Hopefully life will be back to normal at that point and the legislature will have no need to expand the Acts any further.
Smaller employers with less than 50 employees that have not been used to the onerous provisions of the FMLA and its notice requirements should proceed cautiously.