Like each of you, Bowles Rice LLP is closely monitoring the SARS-CoV-2 (“COVID-19”) pandemic. During this time of National Emergency, we are committed to meeting the needs of our clients while taking steps to protect the health and safety of our staff and visitors. As we continue to monitor developments, we want to briefly update you on important federal legislation passed by Congress to combat the COVID-19 threat in the workplace.

Last night, President Trump signed into law the "Families First Coronavirus Act," which as of this writing takes effect no later than 15 days from yesterday's enactment, which would be April 2, 2020. The Act contains numerous provisions relating to spending, nutritional waivers, unemployment insurance, and health care. This alert focuses on the portion of the Act that includes federally-mandated, temporary paid leave provisions that are designed to protect worker pay during absences caused by COVID-19.

While the Act contains provisions expanding unemployment compensation protections for workers, the Act also includes tax credits to help businesses pay for the paid leave requirements and possible exemptions for small businesses, health care providers, and emergency responders.

PUBLIC HEALTH EMERGENCY LEAVE UNDER THE FMLA

The Act contains two temporary paid leave components, both of which expire on December 31, 2020. The first, entitled the "Emergency Family and Medical Leave Expansion Act," creates a new category of job-protected leave under the Family and Medical Leave Act of 1993 for "Public Health Emergency Leave." This new qualifying reason for FMLA leave is available to eligible employees who are "unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency" declared by a federal, state, or local authority with respect to COVID-19.

Unlike other forms of FMLA leave, "Public Health Emergency Leave" is partially paid; it must be offered by all private employers with less than 500 employees and all public employers regardless of size; and may be used by any employee that has worked for his or her employer for at least 30 days. Although the first 10 days of "Public Health Emergency Leave" is unpaid, any additional qualifying leave must be paid by the employer at a rate equal to 2/3 of the employee’s regular rate of pay, up to a maximum of $200 per day and $10,000 in the aggregate.

EMERGENCY PAID SICK TIME

The second paid leave component of the Act, entitled the "Emergency Paid Sick Leave Act," requires employers to provide up to 80 hours of "Paid Sick Time" to employees who need leave:

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 due to concerns related to COVID-19;
   
   
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
   
   
4. The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
   
   
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or
   
   
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

"Paid Sick Time" must be offered by all private employers with less than 500 employees and all public employers regardless of size, and must be offered to all employees, regardless of how long he or she has worked for the employer. Full-time employees must be offered 80 hours of "Paid Sick Time," and part-time employees must be offered a number of hours equal to the average number of hours worked by that employee over a 2-week period.

If an employee takes "Paid Sick Time" for reasons (1) to (3), that employee must be paid at his or her regular rate of pay (or for tipped employees, the applicable minimum wage) for the number of hours the employee would otherwise be normally scheduled to work, up to a maximum of $511 per day and $5,110 in the aggregate. If an employee takes "Paid Sick Time" for reasons (4) to (6), that employee must be paid at 2/3 of his or her regular rate of pay (or for tipped employees, the applicable minimum wage) for the number of hours the employee would otherwise be normally scheduled to work, up to a maximum of $200 per day and $2,000 in the aggregate.

BOWLES RICE IS PREPARED FOR COVID-19

Are you looking for guidance on issues related to COVID-19? We can help. Bowles Rice has a dedicated team of attorneys advising businesses on this fast-breaking issue. For more information, visit our COVID-19 Response Team web page or contact: