Tuesday, March 17, 2020

New Coronavirus Sick Leave Laws for Employers / Employees

On March 14, 2020, to combat Coronavirus' impact on employment, the House of Representative passed a bill.

This bill must still be passed by the Senate and signed into law by the President to be effective.

If effective, this bill will provide paid leave benefits to many employees in the form of an extension of the Family Medical Leave Act ("FMLA") and the implementation of a new Paid Federal Sick Leave law.

Employers should immediately begin preparing polices and leave request forms in anticipation of this new law going into effect to ensure compliance and avoid exposure.

Here is a summary of the new leave bill as currently constituted:

1) Extension of FMLA Leave
  • Applies to employers with less than 500 employees.
  • Applies to employees who have been employed for at least 30 calendar days.
  • Excludes health care provides, emergency responders and employers with less than 50 employees where the "viability of the business as a going concern" would be jeopardized.
  • The first 2 weeks are unpaid; Remaining 10 weeks at 2/3 employee's regular rate of pay.
  • Leave can be taken for the following reasons:
    • In adherence of recommendation of health care provider, that employee's presence at work would place others at risk because of the employee's exposure to Coronavirus or because the employee exhibits symptoms related to the Coronavirus (these conditions must render employee unable to both perform the functions of his/her job while complying with the recommendation/order);
    • To care for a family member, where a health care provider or authority determines that the family member needs to remain isolated from the community because he/she has been exposed to the Coronavirus or exhibits symptoms of the Coronavirus; or
    • To care for a child whose school is closed or his/her regular childcare provider is unavailable.

2) Paid Sick Leave
  • Applies to employers with less than 500 employees. 
  • Employers are required to pay employees up to 80 hours of paid sick leave.
  • Paid sick leave may be used for the following reasons:
    • To self-isolate because employee was diagnosed with Coronavirus;
    • To seek medical care if employee is experiencing symptoms related to Coronavirus;
    • To comply with recommendation/order by health care provider or public official that employee's presence in the workplace would jeopardize the health of others because of employee's exposure to the virus or the employee exhibiting symptoms of the virus;
    • To care for a family member who qualifies under the previous provision; or
    • To care for a child whose school is closed or his/her regular child care provider is unavailable. 
  • Employers must pay all employees who qualify at the employee's regular rate of pay. However, if employee's leave is a result of the 4th or 5th reason above, employer must only compensate employee at 2/3 of his/her regular rate of pay. 

3) Timing/Job Protections/What is not Covered?
  • The bill would take effect 15 days after it is enacted and would be effective only until the end of 2020.
  • Position is protected until return from leave unless employer, who employs 25 or fewer employees, eliminates position due to a downturn in economic conditions as a result of the Coronavirus. However, employers would still have to make "reasonable efforts" to restore employee to the same or equivalent position.
  • This bill, as presently constituted, does not provide protections for employees whose employment is suspended or terminated due to employer closures.



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