Paid Leave

 

Federally Mandated Paid Sick Leave

  • On March 18, 2020 President Trump signed The Families First Coronavirus Response Act (“FFCRA”), which requires certain employers to provide paid sick leave for employees missing work for various COVID-19-related reasons.  The Act takes effect on April 2, 2020.

 

  • Coverage – Employers with less than 500 workers are covered, but employers with less than 50 workers may seek an administrative exception from the U.S. Department of Labor.

 

  • Eligibility – Employees of covered employers are eligible for paid sick leave if the employee is:

    1. Subject to a governmental quarantine or an isolation order.

    2. Self-isolating on the advice of a health care provider.

    3. Sick with COVID-19 symptoms and is seeking a medical diagnosis

    4. Caring for someone who is subject to a quarantine order or is self-isolating

    5. Caring for a child whose school or day care has been closed.

 

  • Benefits – The benefits depend on the reason that an employee is taking sick leave.  Eligible employees who are absent for any of the first three reasons above (because they themselves are sick or isolating) must be paid at their full regular rate for all time off, subject to a cap of $511/day and $5,110 in total.  Eligible employees who are absent because they are caring for others need only be paid at 2/3 their regular rate subject to a cap of $200/day $2000 in total.  Full time employees may take up to 80 hours of paid sick leave.  Part time employees may take up to the average number of hours worked across a two-week period.

 

  • Tax credits – Employers may receive tax credits for paid sick leave benefits paid under the FFCRA up to the benefit caps described above.  Employers should apply for these credits with their quarterly payroll tax filings.  Under the CARES Act, employers may be eligible for advances on anticipated tax credits for paid sick leave or expanded FMLA (described below) benefits.

 

  • Job restoration – No employer can fire an employee in retaliation for taking paid sick leave under the FFCRA.  Covered employers with more than 25 employees are subject to further limitations on their ability to fire or furlough a worker who has taken paid sick leave under the FFCRA. 

 

  • Additional requirements/Enforcement – Covered employers must provide and post certain notices related to paid sick leave benefits at their work place.  The Wage and Hour Division of the U.S. Department of Labor will begin enforcement of the law’s notice and substantive requirements 30 days after the Act take effect on April 2, 2020.  Penalties are those associated with nonpayment of wages under the Fair Labor Standards Act.

 

  • Other paid sick leave programs/requirements – Employers cannot require that employees use pre-existing paid sick leave or paid time off benefits before using the FFCRA paid sick leave.  Furthermore, the FFCRA does not preempt state and local paid sick leave regulation, including emergency paid sick leave laws that have been enacted since the outbreak of COVID-19.  Employers should take a wholistic approach toward assessing their paid sick leave obligations, looking at the FFCRA, state and local requirements, and their own pre-existing internal policies, to formulate a comprehensive policy toward paid sick leave.   

 

  • Of note – Paid sick leave under the FFCRA is not retroactive.  Employees who have taken unpaid leave or been furloughed prior to April 2, are not eligible for benefits for that time.  The paid sick leave provisions of the FFCRA will expire on December 31, 2020, and paid sick leave benefits under the FFCRA do not carry-over and need not be paid out.

 

FMLA Expansion

  •  The FFCRA also amended the Family Medical Leave Act (“FMLA”) to temporarily expand the leave to employees caring for children whose schools have closed, and to make such leave paid.

 

  • Coverage – Employers with less than 500 workers are covered, but employers with less than 50 workers may seek an administrative exception from the U.S. Department of Labor.

 

  • Eligibility – Employees of covered employers are eligible for paid sick leave if the employee is caring for a child whose school or day care has been closed.

 

  • Benefits – After two weeks of unpaid leave (during which time the employee would likely be eligible for paid sick leave) an eligible employee may take up to 10 weeks of leave at 2/3 his regular rate subject to a cap of $200/day and $10,000 in the aggregate.  Leave must end if the employee loses eligibility – for example, if the school reopens or the school year ends.

 

Other FMLA requirements and enforcement mandates apply, except that, under the CARES Act, workers laid off after March 1, 2020, but then rehired, are now immediately eligible for the expanded FMLA leave.  For other types of FMLA leave employees only become eligible after 30 days of employment.

​​​​© 2018 by Scoolidge, Peters, Russotti & Fox, LLP. 

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