Client Alert #2 - Federal Law Re: COVID-19

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March 19, 2020

IN THIS ISSUE:

NYS UPDATE Only 25% of Employees...

Families First Coronavirus...

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DISCLAIMER:

Directions and guidance from federal, state and local authorities are evolving as they continue to assess and react to the coronavirus (COVID-19) pandemic. We are monitoring these changes and will make every effort to keep our clients and

colleagues informed.

Client Alert #2

Updated NYS Law and Federal Law

Re: COVID-19

NYS UPDATE: Only 25% of Employees

Allowed in the Workplace

We reported in our earlier client alert that Governor Cuomo issued an order that will allow no more than 50% of the employees of non-essential businesses to work outside their homes. This morning, the Governor announced that he will revise his order to further restrict the number of employees allowed to work outside the home by requiring non-essential businesses to reduce their workforce at any location by 75%.

Families First Coronavirus

Response Act Signed into Law

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act . The Act provides, among other benefits, paid and unpaid leave to employees who are unable to work for reasons related to COVID-19. The Act also provides tax credits for employers who are required to make payments under this new law.

Two parts of the law, the "Emergency Family and Medical Leave Expansion Act" and the "Emergency Paid Sick Leave Act," summarized below, make significant short-term changes to benefits that employers must provide to employees.

Emergency Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act requires employers with fewer than 500 employees to provide eligible employees with job-protected paid and unpaid leave for a "qualifying need" during a "public health emergency."

Employees are defined as anyone who has been employed by the employer for at least 30 calendar days. Employers may exclude employees who are health care providers or emergency responders.

A "qualifying need" means the employee cannot work or telework due to a need to care for a minor son or daughter whose elementary school, secondary school or childcare is closed, or child care provider is unavailable, due to a "public health emergency."

A "public health emergency" means an emergency with respect to COVID-19 declared by a federal, state or local authority.

The total amount of leave available is the 12 weeks provided by the Family and Medical Leave Act ("FMLA"), which is expanded by this new law.

The first 10 days are unpaid leave. Employees may choose to take any accrued and unused paid time off during this time.

After 10 days, the employer must provide paid leave. The amount must be not less than two-thirds of the employee's regular rate of pay, subject to a cap of $200 per day ($10,000 in the aggregate).

If the leave is foreseeable, an employee must provide notice of the leave as soon as practicable.

The Secretary of Labor is authorized to issue exclusions for health care providers and emergency responders, and for small businesses (with fewer than 50 employees) under certain circumstances. Employers who would not otherwise be required to provide FMLA leave (that is, employers with fewer than 50 employees in a 50-mile radius) are excluded from civil damages in a lawsuit by employees for violation of this Act. Employers with fewer than 25 employees may not be required to restore employees to the same (or similar) position after leave, if certain conditions are met.

The Emergency Family and Medical Leave Expansion Act will go into effect within 15 days after enactment and will expire on December 31, 2020.

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act requires private employers with fewer than 500 employees and public employers to provide paid sick time for reasons related to COVID-19.

Under this Act, employees may be eligible for paid sick time if they are unable to work or telework because:

The employee is subject to a Federal, State or local quarantine or isolation order related to COVID-19;
The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
The employee is caring for an individual subject to quarantine or self-quarantine;
The employee is caring for a son or daughter whose elementary school, secondary school or childcare is closed, or child care provider is unavailable, due to COVID-19 precautions;
The employee is experiencing any other substantially similar condition specified by Federal authorities.

All employees are eligible for paid sick time, no matter how long they have been on the employer's payroll. Eligible full-time employees are entitled to 80 hours of paid sick time, and eligible part-time employees are entitled to paid sick time equivalent to the number of hours that the employee works, on average, over a 2-week period. The amount of compensation must be calculated in accordance with the law, and is subject to a cap of $511 per day ($5110 in the aggregate) if the employee uses sick time for any of the first three reasons and a cap of $200 per day ($2000 in the aggregate) if the employee uses sick time for any of the last three reasons listed above.

Paid sick time may not carry over to the following year, and ends when the employee's need for sick time, for one of the purposes listed above, ends. Employers are not required to pay out any unused sick time upon an employee's termination, resignation, retirement or other separation from employment.

Employees may use paid sick time immediately when needed and employers may not require employees to use other paid leave time before using sick leave provided by this law.

Employers must post and keep posted a notice of this new law, and may not discriminate or retaliate against any employee who takes sick leave under this law. Employers who violate this law may be subject to penalties.

The Secretary of Labor is authorized to issue exclusions for health care providers and emergency responders, and for small businesses under certain circumstances.

The Emergency Paid Sick Leave Act will go into effect no later than 15 days after its date of enactment and will expire on December 31, 2020.

Whether you are an employer or employee, for questions or concerns about the new federal law providing family leave and sick leave for reasons concerning COVID-19, you may contact Chaim Book at [email protected] , Sheryl Galler at [email protected] , or Jennifer Kim at [email protected]

Moskowitz & Book, LLP | [email protected] | http://mb-llp.com/

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