On March 18, the U.S. Senate approved the final versions of an Emergency Family and Medical Leave Act and Paid Sick Leave Act. Both were signed by President Trump and will be effective no later than April 2, 2020.
The Emergency Family and Medical Leave Act applies to all employers with fewer than 500 employees.
- Under the new law, employers are required to provide up to 12 weeks of job-protected FMLA to employees who have been employed for at least 30 days.
- This leave must be provided only to employees who are unable to work at the business or remotely due to the need to care for a child whose school is closed or whose care provider is unavailable due to the coronavirus. (A draft version of the law had much wider applicability.)
- The first 10 days of the leave can be unpaid. Employees may substitute paid time off (vacation, sick, personal, etc.) but may not be required to do so.
- After the first two weeks, employers are required to pay the employee at 2/3 the employee’s regular rate of pay for the remaining 10 weeks.
- This payment is limited to a maximum of $200 per day ($10,000 in total).
There are very limited exceptions to the law. For example, for employers with fewer than 25 employees, there may be a waiver of the job-protection requirement to reinstate an employee if the position has been eliminated due to business circumstances resulting from the pandemic.
The Emergency Paid Sick Leave Act also applies to employers with fewer than 500 employees. Under this new law, employers are required to provide two weeks of paid sick time to employees who are unable to work or telework for one of the following reasons:
- The employee is subject to a federal, state or local quarantine or isolation order relating to Covid-19;
- The employee has been advised by a health care provider to self-quarantine due to Covid-19;
- The employee has sought a medical diagnosis resulting from symptoms of Covid-19;
- The employee is caring for an individual subject to a quarantine order;
- The employee is caring for the employee’s own child whose school is closed, or whose care provider is unavailable due to Covid-19*; or
- The employee is experiencing any other substantially similar condition specified by the Department of Health and Human Services.
If the employees takes leave for reasons 1-3, the payment is limited to a maximum of $511 per day. If the employee takes leave for reasons 4-6, payment is limited to a maximum of $200 per day. (*Two weeks of leave for reason #5 aligns with the first two weeks of Emergency FMLA discussed above.) Employers are prohibited from retaliating against any employee who takes such a leave.
Subject to the specific conditions of forthcoming Treasury Department regulations, 100% of the emergency FMLA and paid sick leave wages may be reimbursed via payroll tax credits. Details to follow.
Given the circumstances, employers should immediately prepare to implement these emergency laws, and create forms and processes for doing so, if needed.
Stuart M. Katz is a principal of Cohen and Wolf and chair of the firm’s Litigation group. He is a member of the firm’s Employment & Labor practice group, and chairs the firm’s Diversity & Inclusion committee. Stuart represents employers of all sizes in defending discrimination and harassment suits and litigating restrictive covenant, breach of contract, business tort and wage claims. He has been named “Lawyer of the Year” for Employment Law (Management) (2018) and for Employment Law (Individuals) (2016) by the Best Lawyers in America, for the Stamford, Connecticut metro area. He routinely provides guidance to employers and employees regarding personnel policies, handbooks and employee discipline.