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New COVID-19 Laws

New Federal Law Provides Expanded Benefits for Employees Impacted
by COVID-19

The Families First Corona Virus Response Act (FFCRA) goes into effect April 2nd, 2020. It creates two new forms of paid leave benefits for employees impacted by the COVID-19 pandemic.

1)   Emergency paid sick leave

2)   Expansion of the Family Medical Leave Act

Employers with fewer than 500 employees will be required to provide and pay for the cost of these benefits.  Employers will be reimbursed through tax credits either at their quarterly social security payments or at the end of the year. Regulations are pending.   Ask your tax advisor.  Some of the details are still working out.  We cannot cover all the details here.  If you have specific questions regarding your situation, consult your legal and tax advisor.

The Basics

Emergency paid sick leave

Employers must provide all employees with up to 10 days of paid sick leave if they are unable to work or telework for any of the following reasons:

  • The employee is subject to a federal, state, or local quarantine or Isolation order related to COVID-19;
  • The employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • The employee is caring for an individual who is under a federal, state, or local quarantine or isolation order or who has been advised by a health care provider to self-quarantine;
  • The employee is caring for a child whose school has been closed, or whose child provider is unavailable, due to COVID-19 precautions;
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

A STAY AT HOME ORDER OR ADVISORY DOES NOT, IN MY OPINION, QUALIFY AS A QUARANTINE OR ISOLATION ORDER!

If an employee uses COVID-19 paid sick leave for reasons 1-3 above, must be paid their regular rate of pay, up to a maximum of $511 per day or $5,110 total. If an employee uses COVID-19 paid sick leave for reasons 4, 5, or 6 above, must be paid at least 2/3 of their regular rate of pay, up to a maximum of $200 per day or $2,000 in total.

This entitlement augments any existing paid leave policies employers have in place. Employees may use FFCRA paid sick leave before using any other paid leave (e.g., vacation, PTO, California paid sick time).

This law expires December 31, 2020.  The government is working on rules to exempt employers of 50 or less employees, but they are not there yet. They are also working on a mandatory notice that must be posted within 7 days after April 2.  Employers of health care providers and emergency responders are permitted to exclude employees from this law?!

FMLA Temporary Amendments

After the first 10 days exendeded sick leave employees are entitled to Family and Medical Leave Act (“FMLA”) temporarily expanded through December 31, 2020, to allow employees leave of up to 12 weeks to be used for a “qualifying need” as declared by federal, state, or local authorities.

A “qualifying need” occurs when:

  • employees are unable to work or telework due to the need to care for their child whose school has been closed, or whose child provider is unavailable, due to COVID-19 concerns.

Employees are eligible for the expanded FMLA leave if they have been employed for at least 30 calendar days.

FMLA leave is generally unpaid. However, If an employee takes leave under this temporary provision, the first 2 weeks of leave may be unpaid, and the employer must provide paid leave for up to 10 weeks thereafter. An employee may (but cannot be required to) use accrued vacation or sick leave during the initial unpaid two weeks, and thereafter, must be Paid at least

  • 2/3 of the employee’s regular rate of pay, up to a maximum of $200 per day or $10,000 in the aggregate.

Employees are entitled to reinstatement to the same or equivalent position upon exhausting their FMLA leave under this provision, except no reinstatement is required if the employer has fewer than 25 employees, and the following conditions are all met:

  • the employee’s job no longer exists due to economic conditions or other operating conditions caused by COVID-19;
  • the employer has reasonably attempted to restore the employee to an equivalent position, and

(3)     if reasonable efforts fail, the employer must make reasonable efforts for one year to contact the employee if an equivalent position becomes available.

Unique eligibility requirements, and the paid component of, this expanded FMLA provision do not impact the existing provisions of FMLA and are specific to address the COVID-19 pandemic.

FFCRA paid sick leave is set to expire on December 31, 2020, and unused paid sick leave will not carry over from year to year, nor be paid out upon termination of employment.

The Secretary of Labor is tasked with publishing a model notice regarding this temporary paid sick leave law within 7 days of the FFCRA being enacted, which employers will be required to post in the workplace.

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