WHAT IS REALLY IN CONGRESS’ EMERGENCY CORONAVIRUS BILL? HERE’S WHAT YOU NEED TO KNOW

Written by: Jacqueline Voronov, Esq., Jeffrey M. Daitz, Esq., and Christopher Eads, Esq.

Perhaps bipartisan bills really do exist? On March 14, 2020, the House of Representatives passed the Emergency Families First Coronavirus Response Act (“EFCRA”), a sweeping bill aiming to soften the economic blow that many Americans are expected to feel as stores close, people stay home and stock markets plunge.  Lawmakers are currently finalizing the Act, which could provide free screening, paid leave and enhanced unemployment insurance benefits for people affected by COVID-19.  Besides dealing with immediate public health related matters, the bill contains several provisions that will impact employers.  Set forth below are summaries of the bill’s provisions relating to paid family medical leave and paid sick leave.   If passed, the bill will become law within 15 days of the President’s signature and will expire on December 31, 2020 unless extended.

Please note- the Act has not yet been finalized and the enacted law may still be subject to change, so be sure you are subscribed to Hall Booth Smith’s labor and employment blog to receive the most up-to-date information.

The Emergency Paid Sick Leave Act

This provision requires employers with fewer than 500 employees to provide employees (regardless of the employee’s duration of employment prior to leave) with up to 80 hours of paid sick leave.

I. Covered Reasons For Leave

• • The employee is required to self-isolate because they have been diagnosed with coronavirus;
  • The employee wants to go to the doctor because they are experiencing symptoms of coronavirus;
  • The employee is ordered to stay home by a doctor or a government official on the basis that the presence of the employee at work would jeopardize the health of others because the employee was exposed to the coronavirus or the employee is symptomatic;
  • The employee needs to care for any of the following family members who are either self-isolating or need to see a doctor because they are experiencing symptoms: parent, spouse, children under 18, pregnant daughters, pregnant next of kin, grandparents, a disabled grandchild, or a disabled child (regardless of age);
  • The employee needs to care for any of the following family members that have been ordered to stay home by a doctor or a governmental official: parent, spouse, children under 18, pregnant daughters, pregnant next of kin, grandparents, a disabled grandchild, or a disabled child (regardless of age); and,
  • The employee needs to care for a child because daycare or school is closed, and the babysitter is unavailable due to coronavirus.

II. Calculating Rate of Pay

Full-time employees will be entitled to 80 hours of paid sick leave at the employee’s regular rate (or two-thirds the employee’s regular rate to care for a child whose school or daycare has closed due to coronavirus, or to care for a family member who is self-isolating due to a coronavirus diagnosis, who is exhibiting symptoms and needs to obtain medical care, or who is complying with a requirement or recommendation to quarantine).

Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking paid sick leave. Employees who have worked for less than six months prior to leave are entitled to the average number of hours the employee would normally be scheduled to work.

III. Employer Tax Credit

The legislation allows for refundable tax credits in “an amount equal to 100 percent of the qualified” sick leave paid by the employer for each calendar quarter. The credit can be taken against the employer’s portion of the Social Security taxes. However, as with most tax credits, there are some caps and limits. Specifically, the refund for sick leave is capped at $511/day for triggering events 1-3 above and at $200/day for triggering events 4-6 above.

IV. Compliance with EPSLA

An employee is not required to follow existing company policies should they request time off for a triggering event.  An employer that does not comply with the EPSLA that is otherwise required may be subject to fines and penalties stated in the Fair Labor Standards Act.  An employer may not change its current paid leave policy after enactment to avoid the obligations of the additional leave mandated by the Emergency Paid Sick Leave Act.  Any violation that could be determined to be “willful” would result in additional exposure for liquidated damages.

V. Other Important Points And Takeaways

• • The EPSLA contains an anti-retaliation provision which prevents an employee from being terminated for taking leave pursuant to the EPSLA.
  • EPSLA leave does not accrue, employers are not required to pay employees for any unused EPSLA leave upon termination, and is in addition to any paid sick leave currently provided by employers.
  • Employers are required to post an EPSLA notice on the business’ premises in a conspicuous place informing employees of their right to take leave.
  • Employers may exclude employees who are healthcare providers or first responders from the paid sick leave benefits provided by the Act.

The Emergency Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act significant amends and expands the FMLA on a temporary basis to provide up to 12 weeks of leave “because of a qualifying need related to a public health emergency.”

I. Expanded Coverage and Eligibility

The current FMLA employee threshold for coverage would be changed from covering only those employers with 50 or more employees to those with 500 or fewer employees and government employers.  It also lowers the eligibility requirement to provide benefits for employees who have worked at least 30 days.  This means that thousands of employers not previously subject to the FMLA must provide job-protected leave to employees for a COVID-19 coronavirus-designated reason.

II. Small Business Exemption

For smaller employers with 50 or less employees, the Secretary of Labor has the authority to exempt some small businesses and exclude compliance with the EMLEA under limited circumstances.  However, without fist receiving assurances of exemption from the Secretary of Labor, employers must comply with the EFMLEA.

III. Expanded Definitions

The definitions of both “employee” and “employer” would be amended to provide more expansive coverage for the FMLA emergency health leave. Similarly, the term “health care provider” would be amended to include nurse practitioner and the terms “family,” “parent” and “child” would be expanded, to include parents and children of domestic partners.  Further, “parent” includes step-parents, parents-in-law, and parents of a domestic partner.

IV. Reasons for Leave

Any individual employed by the employer for at least 30 days (before the first day of leave) may take up to 12 weeks of paid, job-protected leave to allow the employee to:

• • To comply with a recommendation or order by a doctor or government official that the employee’s physical presence at work would jeopardize the health of others because of that employee’s exposure to the coronavirus or exhibition of symptoms and the employee cannot perform the job duties and comply with the recommendation;
  • The employee needs to care for at-risk family members that have been ordered to stay home by a doctor or a governmental official: parent, spouse, children under 18, pregnant daughters, pregnant next of kin, grandparents, a disabled grandchild, or a disabled child (regardless of age); or
  • The employee needs to care for a child because daycare or school is closed or the child care provider is unavailable due to a public health emergency.

V. Paid Leave

The first 10 days of leave are unpaid, but an employee may elect to substitute any accrued vacation leave, personal leave or medical/sick leave, and employers are prohibited from requiring the substitution of paid leave.

If leave for a qualifying need related to a public health emergency continues beyond 10 days, it must be paid. The leave paid at a rate of two-thirds of employee’s regular rate of pay as determined under the Fair Labor Standards Act (FLSA) and is based on the number of hours the employee normally would have been scheduled to work. For employees with varying work hours, a special formula is provided.  In all cases, an employer need not pay an employee more than $200 per day and $10,000 in the aggregate.

Employees are required to provide notice as soon as practicable when the need for leave is foreseeable.

Generally, employers with 25 or more employees must restore employees to their positions following their return from leave in the same manner as generally mandated by the FMLA.  Employers with less than 25 employees also must reinstate employees unless certain conditions are satisfied.

What Happens Next?

There may be further changes made by lawmakers before the legislation is finalized. In addition, many states are proposing similar emergency legislation to enact or expand their own paid sick leave or family and medical leave laws to cover coronavirus-related issues.  Some of these state laws may be in addition to any new requirements at the federal level.

We will continue to monitor this rapidly developing situation and provide you with updates regarding developments as they occur.  For further information, contact Hall Booth Smith, P.C’s labor and employment attorneys or any member of our COVID-19 Taskforce.

This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Hall Booth Smith, P.C. and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.  This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.