24 March 2020
24 March 2020,
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NEW COVID-19 Employee Protections – Expanded FMLA Protection and Paid Sick Leave

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act. As part of this comprehensive economic stimulus plan, Congress affords greater protections for employees in light of the COVID-19 pandemic which will directly affect their rights in the workplace. FOR ADDITIONAL GUIDANCE PLEASE CONTACT CAFFARELLI & ASSOCIATES LTD. AT 312-763-6880 OR ONLINE AT CAFFARELLI.COM.

Specifically, two of the provisions in the Act affect an employee’s ability to take paid job protected leave. The Emergency Family and Medical Leave Expansion Act expands upon the eligibility requirements for job protected leave under the Family Medical Leave Act. Additionally, the Emergency Paid Sick Leave Act creates an entirely new federal paid sick leave law. Both of these provisions become effective on April 2, 2020 and remain effective until December 31, 2020.

Here is what you need to know about both of these critical provisions:

The Emergency Family and Medical Leave Expansion Act

Who is a covered employee with a qualifying need under this Act?

In order to qualify for Emergency FMLA, an employee must have been employed for at least 30 calendar days by the employer. The Act outlines the following as a “qualifying need” for Emergency FMLA: “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”

Who is a covered employer under this Act?

Emergency FMLA covers employers with fewer than 500 employees, as opposed to the ordinary FMLA coverage which covers employers with 50 or more employees.

What is the paid leave requirement?

The Emergency FMLA provides a total of 12 weeks of job protected leave. The first 10 days of leave under this Act are unpaid. An employee is permitted to use previously accrued paid time off during this initial 10-day period. After the first 10 days, an employer must pay full-time employees two-thirds of an employee’s regular rate of pay for the number of hours the employee would otherwise be normally scheduled to work. For part-time employees, or employees with schedules that change from week to week, the employee must be paid according to the average number of hours the employee was scheduled per day over the past 6-month period.

Are there any special exclusions for certain employers under the Act?

The Act excludes healthcare providers and emergency responders from being covered employers. The act also exempts small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business.

Emergency Paid Sick Leave Act

Who is a covered employee with a qualifying reason under this Act?

Emergency paid sick leave is available to any employee who is covered under the Fair Labor Standards Act. The Act extends protections to employees regardless of how long they have been employed by the employer. An eligible employee may take paid sick leave due to a number of COVID-19 related reasons including but not limited to an employee being subject to a local quarantine order, an employee being advised by a health care provider to self-quarantine, or an employee caring for an individual who is subject to a local quarantine order.

Who is a covered employer under this Act?

Emergency Paid Sick Leave covers employers with fewer than 500 employees.

What is the paid leave requirement?

Employers shall provide full-time employees 80 hours of paid emergency sick leave. For part-time employees, an employer shall provide an employee a number of hours equal to the average number of hours an employee works over a 2-week period. An employer cannot require an employee to search or find a replacement employee to cover the hours during which the employee is using paid sick time. Further, an employer also may not require an employee to use other paid leave provided by the employer before the employees uses the paid sick time under this Act.

Are there any special exclusions?

The Act excludes healthcare providers and emergency responders from being covered employers.

What are the remedies for employers violating this Act?

An employer who violates the provisions of this Act, including retaliation or discrimination against any employee who exercises their rights under this Act, are subject to all the penalties available under the Fair Labor Standards Act.

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