Employment security is something many of us often take for granted. However, with the continued rise of forced quarantines and closing of restaurants, venues, and other non-essential businesses due to the recent COVID-19 outbreak, you may be growing concerned about what the next couple of months may hold with regards to your pay and employment status. Yesterday, on March 18, 2020, Congress took steps towards alleviating some of those concerns.
Specifically, the Senate approved legislation that will require certain employers to provide Emergency Paid Sick Leave and Emergency Paid Leave under the Family Paid Medical Leave Act (FMLA) under certain circumstances. Here is an overview of some of the things it provides:
Emergency Paid Leave Under FMLA
The final legislation provides that private-sector employers that employ fewer than 500 individuals, as well as certain pubic sector employers, will be required to provide up to 12 weeks of job-protected leave under FMLA for “a qualifying need related to a public health emergency.” A “qualifying need” includes circumstances where an employee cannot work or telework because they need to care for a minor child when the child’s school or place of child care has been closed due to a public health emergency (such as COVID-19).
Covered employers will have to provide Emergency Paid Leave to employees who have been on their payroll for at least 30 calendar days. Of those 12 weeks, the first 10 days could be unpaid at the employer’s discretion, but an employee could choose to substitute accrued vacation, personal or sick leave in order to receive a paycheck during those first two weeks. But an employer can NOT require an employee to do so.
During the remaining 10 weeks (100 days) of leave, the employee would have to be paid for the number of hours he/she would normally have worked and most likely at a rate of two-thirds of his/her regular rate. However, it is important to note that during these ten weeks of leave, an employer is not required to pay an employee more than $200 per day or more than $10,000 in the aggregate.
The legislation also protects employees returning to work after they take Emergency Paid Leave. This means that once an employee returns from leave, their employer must restore employees to the same or equivalent position they had prior to taking leave. There is an exception for some employers who employ less than twenty-five employees, if the employee’s position no longer exists due to operational changes occasioned by a public health emergency (such as a dramatic downturn in business caused by the COVID-19 pandemic).
Emergency Paid Sick Leave
Of equal importance is the Emergency Paid Sick Leave section of the legislation, which requires private sector employers and certain public sector employers that employ less than 500 people to provide paid sick time in various circumstances. These circumstances include:
- An employee who is subject to a federal, state, or local quarantine due to COVID-19;
- An employee who has been advised by a health-care provider to self-quarantine due to COVID-19;
- An employee experiencing symptoms of COVID-19 who is seeking a medical diagnosis;
- An employee caring for an individual who is subject to an advised quarantine or self-isolation;
- An employee caring for a child whose school or childcare provider is closed or unavailable due to COVID-19 precautions; or
- An employee experiencing circumstances that are substantially similar to those listed above.
In general, an employee seeking paid sick leave under this legislation is entitled to 80 hours of paid sick time. If the employee works less than full time, then they are entitled to paid sick time equal to the number of hours they would typically work in a two-week period.
An employee taking Emergency Sick Leave must specify which of the reasons listed above is the cause for his/her need to take Emergency Sick Leave. If it is for one of the first three reasons listed above, an employer will not be required to pay the employee more than $511 per day, and if it is for one of the second three reasons listed above, the employer is not required to pay the employee more than $200 per day.
Emergency Sick Leave is available to all employees working for covered employers, not just those who have been on payroll for longer than thirty days. And an employer is prohibited from retaliating against employees who request and take Emergency Paid Sick Leave.
There are two big potential exceptions to this legislation:
- Health care providers and emergency responders may or may not be employees that are permitted to take Emergency Paid Leave under FMLA or Emergency Sick Leave;
- Small businesses with less than 50 employees total may not be required to provide this Emergency Paid Leave under FMLA or Emergency Sick Leave if it would jeopardize the viability of their business;
The extent of these exceptions is still unclear and will likely be determined in the coming weeks as the Secretary of Labor starts to implement this legislation create corresponding regulations.
This legislation will provide widespread relief for employees throughout the nation during these stressful and uncertain times. Our attorneys at Howard, Stallings, From, Atkins, Angell & Davis, PA have years of experience with helping employees understand and maximize their rights. We care about putting your mind at ease regarding COVID-19 and your job security going forward. If you have questions about whether this law can benefit you, reach out to us today.