Spognardi Baiocchi LLP Client Alert
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                  March 19, 2020
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IT IS NOW LAW!  EMERGENCY PAID SICK LEAVE
The Families First Coronavirus Response Act was signed into law late yesterday, March 18, 2020, after the Senate sent it to President Trump for his signature.  The law becomes effective 15 days after President Trump signed it. 

Private employers with under 500 employees will need to provide each employee paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because: 

(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 an order as described in paragraph (1) or has been advised as described in paragraph (2).

(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.

(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.

Additional Provisions

  • Full time employees will be entitled to 80 hours.  Part time employees are entitled to the number of hours equal to the hours that such employee works on average over a 2-week period.  
    • In the case of a part-time employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked if such employee had not taken paid sick time, the employer shall use the following in place of such number:
      • (i) a number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes the paid sick time, including hours for which the employee took leave of any type; or
      • (ii) If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.
  • All employees will have access to the full amount of time off under this Emergency Paid Sick Leave immediately and without regard to how long he or she has been employed.  
     
  • Employers may not require its employees to use any other paid leave provided to him or her by the employer before using the Emergency Paid Sick Leave.  
     
  • Employers who have employees that are health care providers or emergency responders may elect to exclude such employees from this Emergency Paid Sick Leave law. 
     
  • Employers will be required to post (where notices are customarily posted), a notice which will be prepared or approved by the Secretary of Labor outlining the major provisions of this law.  And this new law also requires that the Secretary of Labor make, publicly available, a notice that meets all necessary requirements no later than 7 days after the date of enactment of this law. 
  • Paid sick time in terms of wages paid to such individual employees do not need to exceed-
    • $511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) above; and
    • $200 per day and $2,000 in the aggregate for a use described in paragraphs (4), (5), or (6) above
*SPECIAL RULE FOR CARE OF FAMILY MEMBERS UNDER EMERGENCY PAID SICK LEAVE: Paid sick time provided for any use described in paragraphs (4), (5), or (6) above need only paid at two-thirds of such employees' wages.  
  • Wages required to be paid under the Emergency  Paid Sick Leave will not be subject to the 6.2 percent social security payroll tax typically paid by employers on such wages.
  • Employers can employ a "reasonable notice requirement." After the first workday (or portion thereof) that an employee receives paid sick time under this new law, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.
  • Also please note that employers are prohibited from requiring, as a condition of providing Emergency Paid Sick Leave, that the employee involved search for or find a replacement employee to cover the hours during which the employee is using paid sick time.  
  • Finally, the language of this amended bill suggests that an employee can use his or her Emergency Paid Sick Leave during the initial 10 days of unpaid leave under the expanded FMLA. The Department of Labor is expected to provide additional guidance within the 15 day window before this law takes effect.  

This Emergency Paid Sick Leave law is slated to expire on December 31, 2020.

Spognardi Baiocchi LLP will continue to update its clients as more information becomes available.  Please contact us with any other questions or concerns. 
IT IS NOW LAW!  EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT
The Families First Coronavirus Response Act was signed into law late yesterday, March 18, 2020, after the Senate sent it to President Trump for his signature.  The law becomes effective 15 days after President Trump signed it and it contains an Emergency Family Medical Leave Expansion section which is further described below.  

Who needs to provide these benefits?  All private employers  with under 500 employees. 

What is the amount of time provided ?  These employers will need to provide up to 12 weeks of FMLA leave for employees. 

Which employees qualify?  Those who have been on the job for at least 30 days, and who are unable to work or telework because they have to care for a minor child if the child's school or place of care has been closed, or if the child care provider of that child is unavailable due to a COVID-19 public health emergency. The term 'public health emergency' means an emergency with respect to COVID-19 declared by a Federal, State, or local authority. 


Below are some of the additional major highlights:  

  • The first 10 days of leave can be unpaid but employees can opt to use accrued vacation days or other available paid leave for those days. After the 10 days, employers will have to pay employees at least 2/3 of their normal rate of pay for hours they would have worked.  However the paid leave is capped at $200 per day and $10,000 in the aggregate.
      • In the case of a part-time employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked if such employee had not taken family medical leave, the employer shall use the following in place of such number:
        • (i) a number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes the leave, including hours for which the employee took leave of any type; or
        • (ii) If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.
  • Employee has duty, in any case where the necessity for leave is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.
  • Generally, the employee on leave must be restored to his or her prior position; however, this requirement does not apply to employers with fewer than 25 employees if the position held by the employee on leave no longer exists due to economic conditions or other changes in the employer's operating conditions caused by the coronavirus pandemic, and the employer makes reasonable efforts to restore the employee to an equivalent position. 
  • Wages required to be paid under the emergency family leave provisions will not be subject to the 6.2 percent social security payroll tax typically paid by employers on employees' wages.
  • The Department of Labor will be authorized to issue regulations to (i) exclude certain health care providers and emergency responders from paid leave benefits, and (ii) exempt small businesses with fewer than 50 employees from the paid leave requirements "when the imposition of such requirements would jeopardize the viability of the business as a going concern."
  • An employer of an employee who is a health care provider or an emergency responder may elect to exclude the employee from the emergency family leave provisions.
  • The above provisions will take effect no later than 15 days after the Act is enacted, and expire on December 31, 2020.
Spognardi Baiocchi LLP will continue to update its clients as more information becomes available.  Please contact us with any other questions or concerns. 
IT IS NOW LAW!  TAX CREDITS APPLICABLE TO THE NEW LAW FOR EMERGENCY PAID SICK LEAVE AND FMLA
Refundable credits for the employer portion (but not the employee portion) of the 6.2 percent employer portion of the Social Security tax will be provided to employers to cover wages paid to employees for time off under the above Emergency Paid Sick Leave and amended FMLA. Generally, the provisions allow: 
  • The sick leave credit for each employee will be for wages (including qualified health plan expenses relating to those wages) of up to $511 per day while the employee is receiving paid sick leave to care for himself or herself, or $200 if caring for a family member or child whose school has closed. The credit will be limited to 10 days per employee per quarter.
  • The family leave credit for each employee will be for wages (including qualified health plan expenses relating to those wages) of as much as $200 per employee per day, and $10,000 in the aggregate for all calendar quarters.
  • To prevent a double benefit, employers must include the amount of credits received in their gross income.
  • An employer can elect to not take the credit for a given quarter.
  • The Department of the Treasury will be authorized to issue regulations or guidance relating to the credits.
SPOGNARDI BAIOCCHI LLP is  a law firm dedicated to partnering with companies of all sizes to address the full spectrum of legal concerns for its business.  Our commitment is to find common sense solutions that fit each clients' unique situation to labor, employment, human resources and general business needs. 

With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 
 
For more information on the firm, please go to our website at www.psb-attorneys.com or Lisa at lab@psb-attorneys.com
 
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DISCLAIMER: All content in this Client Alert is intended for general information only and is current as of the date and time of circulation.  Nothing contained herein should not be construed as legal advice applicable to your particular situation.  No attorney-client relationship is created. Before taking any action based on the information contained herein, you should consider your personal situation and secure the necessary legal and/or professional advice.