Summary of Emergency FMLA and Paid Sick Leave

Effective April 1, 2020

FMLA has been expanded in view of the COVID-19 situation we are facing. Specifically, private-sector employers with fewer than 500 employees, and covered public-sector employers, must provide up to 12 weeks of job-protected FMLA leave for “a qualifying need related to a public health emergency” to employees who have been on the payroll for 30 calendar days. This “qualifying need” is limited to circumstances where an employee is unable to work (or telework) due to a need to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency.

The first 10 days of emergency FMLA leave can be unpaid. An employee can choose to use accrued vacation, personal, or sick leave during this time, but an employer may not require an employee to do so.

The remaining 10 weeks of FMLA leave taken for this qualifying need is required to be paid, generally at two-thirds of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work. The bill limits the amount of required pay for such leave to no more than $200 per day and $10,000 in the aggregate.

Emergency FMLA leave taken is generally job-protected, meaning the employer must restore the employee to his/her prior position (or an equivalent) upon the expiration of the employee’s need for leave. However, there is an exception to this requirement for employers with fewer than 25 employees, if the employee’s position no longer exists at the conclusion of the leave due to operational changes resulting from a public health emergency (e.g., a dramatic downturn in business caused by the COVID-19 pandemic), subject to certain conditions.

Health care providers and emergency responders may be excluded from the definition of employees who are allowed to take such leave, and the Department of Labor can exempt small businesses (defined as those with fewer than 50 employees) if the required leave would jeopardize the viability of their business. Employers may exclude employees who are health care providers or emergency responders from this emergency FMLA entitlement.

Employers that do not employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year are excluded from civil FMLA damages in an employee-initiated lawsuit.

These provisions will sunset on December 31, 2020.

Emergency Paid Sick Leave

Private employers with fewer than 500 employees, and covered public employers, are required to provide paid sick time to an employee who is unable to work (or telework) because:

  1. the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. the employee has been advised by a health care provider to self-quarantine because of COVID-19;
  3. the employee has been advised by a health care provider to self-quarantine because of COVID-19;
  4. the employee is caring for an individual subject or advised to quarantine or self-isolate;
  5. the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
  6. the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Unlike the emergency FMLA requirements, an employee is immediately eligible for this leave (there is no 30-day-on-payroll requirement).

As with emergency FMLA leave, an employer may exclude employees who are health care providers or emergency responders from this coverage. The bill grants the Secretary of Labor the authority to issue regulations to: (a) exclude certain health care providers and emergency responders from the definition of employee by, among other things, allowing them to opt out; (b) exempt small businesses with fewer than 50 employees from these requirements if they jeopardize the viability of a business as a going concern; and (c) ensure consistency between the paid FMLA and paid sick leave standards and tax credits.

In general, an employee is entitled to 80 hours of paid sick time (or, for workers who work less than full time, the typical number of hours they are scheduled to work in a two-week period).

The bill limits an employer’s requirement of paid leave to $511 per day ($5,110 in the aggregate) where leave is taken for reasons (1), (2), and (3) noted above (generally, an employee’s own illness or quarantine); and $200 per day ($2,000 in the aggregate) where leave is taken for reasons (4), (5), or (6) (care for others or school closures).

Employers are prohibited from retaliating against any employee who takes leave in accordance with the new law. Moreover, failure to pay the required sick leave will be treated as a failure to pay minimum wages in violation of the Fair Labor Standards Act.

These provisions are also scheduled to sunset on December 31, 2020.

Not everyone falls within the law’s coverage. For example, a person who is not sick with the virus, does not have children under 18, is not caring for a sick person and is not required to self-quarantine does not fall within its protection. Making the determination as to who falls within the law requires employers to collect personal information that an employer previously would shy away from knowing. The EEOC seems to be loosening its standards as to what employers can ask based on this public health emergency. Tread cautiously but gather the facts you need to know to make an informed decision as to who is and/or is not protected.

Tax Credits as to both Emergency FMLA and Paid Sick Leave:

Employers, including self-employed individuals, will be granted refundable tax credits for monies paid to employees as a result of emergency FMLA or paid sick leave. Note that these credits are only available to those employers that are required to offer these benefits under the law, and these new credits are not generally extended to employers not subject to the law (those with more than 500 employees). In broad strokes, the bill allows a credit against “social security” taxes, which accrue at a rate of 7.65% of pay to the extent the employer has paid wages under the emergency FMLA or paid sick leave provided under the emergency legislation. To the extent wages paid in a calendar quarter exceed the allowable credit, it is refundable.

Note: This Summary is provided for informational purposes only, and no one should rely upon the information contained herein as constituting legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between any attorney and any other person, group or entity. No representations or warranties whatsoever, express or implied, are given as to the accuracy or applicability of the information contained herein. The information may be modified or rendered incorrect by future legislative or judicial developments and may not be applicable to any individual reader’s facts and circumstances. It is strongly suggested that you seek individual counsel to review your specific needs and goals.