COVID-19 Breaking News: House Passed Bill With Paid Sick Leave Provisions – We are Watching Senate to See What Happens Next!

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March 16, 2020

Late Friday, the House passed the Families First Coronavirus Response Act (“FFCRA”) which provides COVID-19 relief to Americans in several areas. This alert will focus only on the two provisions regarding paid leave for employees. The Senate is expected to review the bill this week and President Trump has indicated he will sign it. If that happens, the bill will be effective in no later than fifteen days.

This alert breaks down the FFCRA into two parts: Two-Week Paid Emergency Leave and FMLA Emergency Expansion Leave. Both leave provisions will end December 31, 2020, unless otherwise amended.

These two paid sick leave provisions DO NOT apply to private employers with more than 500 employees. Contact legal counsel if you have questions regarding calculating your number of employees regarding this issue.

TWO-WEEK PAID EMERGENCY LEAVE

What is it? Private employers with less than 500 employees and all public employers must provide full-time employees eighty hours of paid leave, and provide part-time employees paid leave in the amount of hours they would normally work in a two-week period.

What about someone I just hired? Yes, they get this paid leave.

What is the leave for and how much pay must we provide? The leave is for the following reasons. Employee related leave is at full pay and family member related leave is at two-thirds pay.

    • Employee has the virus (full).
    • Employee home with symptoms and waiting for diagnosis (full).
    • Employee home due to state/federal/ hcp recommended quarantine (full).
    • Employee has to care for family member who has the virus (2/3).
    • Employee has to care for family member with symptoms and waiting for diagnosis (2/3).
    • Employee has to care for family member who is on state/federal/hcp recommended quarantine. (2/3)
    • Employee has to care for employee’s child if school is closed or child care unavailable due to virus (2/3).

So, schools are closed in WI and other locations…does that mean all my employees with kids in school can take leave? If the bill is passed we hope there is more guidance on this issue. We believe the employee will need to establish they need the leave to care for the child. Contact your legal counsel for a recommendation in this area.

What if we already have PTO? This leave is in addition to existing PTO or other paid leave. The bill specifically states employers cannot change existing leave policies as a result of this new law.

Can we require them to use our existing paid leave first? No.

FMLA EXPANSION PAID LEAVE.

What is it? Private employers with less than 500 employees and all public employers must expand their FMLA policy to add this additional leave for all full and part-time employees. The first two weeks is unpaid (employees can use accrued leave or the emergency leave above). However, unlike normal FMLA leave which is unpaid, the next ten weeks is paid at two-thirds their regular pay.

We have less than fifty employees so we don’t offer FMLA. What do we need to do? You need to offer THIS particular FMLA leave.

How long does an employee have to work to be eligible? Thirty days.

What do they get to take the leave for? They can use if for the following:

    • Employee cannot be at work due to state/federal/ hcp recommendations due to exhibition of symptoms or quarantine and the employee “is unable to both perform the functions of the position” and comply with such recommendation.
    • Employee needs to care for a family member who is home due to state/federal/ hcp recommendations due to exhibition of symptoms or quarantine
    • Employee has to care of employee’s child if school is closed or child care unavailable due to virus.

Note: Parents include parent-in-laws and domestic partner parents. Also family member is expanded to include next-of-kin, grandparents and grandchildren.

So, schools are closed in WI and other locations…does that mean all my employees with kids in school can take leave? As with the two-week emergency leave, if the bill is passed we hope there is more guidance on this issue. We believe the employee will need to establish they need the leave to care for the child. Contact your legal counsel for a recommendation in this area.

If an employee is simply quarantined and can work from home, do they get this leave? In our opinion at this time, if an employee is simply quarantined and can “perform the functions of the position” from home, they don’t qualify for the leave.

We have more than 50 employee so we currently offer FMLA. Is this on TOP of the 12 weeks employees get now? No. This is part of the total 12 weeks of leave. So based on our interpretation of the law at this time, if an employee has already used all of his/her FMLA leave for something else (e.g. birth of child) then they do not have additional leave under this law.

Are there any exemptions? The bill provides that employers with less than 50 employees who can show the law will “jeopardize the viability of the business as a going concern” may be exempt (but we don’t yet have regulations to clarify what this means.) There is also an exclusion for health care providers and emergency responders.

WHAT ELSE DO WE NEED TO KNOW?

The bill as drafted provides limited refundable tax credits to employers who pay sick leave in accordance with these new provisions. In the event this bill is passed, we will update you with more specific details regarding tax, health and unemployment provisions. In the meantime, contact Ruder Ware legal counsel for questions about this pending legislation.

As always, contact your Ruder Ware employment law attorney if you have further questions or require any assistance in drafting policies regarding this issue.

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