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                  March 16, 2020
 
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DETAILS ON HOUSE BILL'S PROVISIONS FOR FMLA AND PAID SICK LEAVE
 
While we still do not know the fate of the COVID-19 Bill passed by the House on Saturday, March 14th, below are some additional details from our earlier MMM edition concerning Family Medical Leave as well as Paid Sick Leave outlined in such proposed Bill making its way to the Senate:
 
FMLA:

The federal Family Medical Leave Act (FMLA) would be amended as follows:

1. Employee Eligibility Definition: employee eligibility requirements traditionally found under FMLA (e.g., one year of employment, worked 1,250 hours, etc.) have been amended. The employee need only have been employed by the employer for at least 30 days.

2. Covered Employer Definition: those with "fewer than 500 employees" rather than those with "50 or more employees.

3. Reasons for Leave: amended to include a qualifying need related to a public health emergency" ("Public Health Emergency Leave"). Public Health Emergency Leave may be taken when such an emergency is declared by a federal, state, or local authority (including the current federal and several local states of emergency that have already been declared). Leave may be taken during such a public health emergency for the employee to:
    • comply with a recommendation or order by an authorized public official, or a health care provider, that the physical presence of an employee on the job would jeopardize the health of others because of (i) exposure to COVID-19, or (ii) exhibition of symptoms of COVID-19, and the employee is unable to both perform the functions of the position and comply with the recommendation or order; or
    • care for a family member where a public health official or health care provider has determined that the family member's presence "in the community would jeopardize the health of other individuals in the community because of" (i) exposure to COVID-19, or (ii) exhibition of symptoms of COVID-19; or
    • care for child under the age of 18 if the school (elementary or secondary school) or place of care has been closed, or the childcare provider of the child is unavailable, due to a public health emergency.
4. Pay During FMLA Leave: The first 14 days of the Public Health Emergency Leave are unpaid. The employee may elect to substitute accrued leave, but an employer may not require such a substitution. After the first 14 days, leave will be paid and calculated as follows:
    • at a rate not less than two-thirds (2/3) of the employee's "regular rate of pay" (as defined under the federal Fair Labor Standards Act ("FLSA")), based on the number of hours the employee would otherwise be normally scheduled to work; and
    • if the employee's schedule varies from week to week, benefits under the Bill will be calculated based on the following: (1) the average number of hours that the employee was scheduled per day over the six-month period ending on the date on which the leave begins (including hours for which the employee took leave of any type), or (2) if the employee did not work over that period, the reasonable expected schedule, as established at the time of hiring.

 

5. Family Member Definition: family member will be expanded to include (in addition to a parent, spouse, and son or daughter who is under 18 years of age): 

    • a broader definition of "parent" (including biological, foster, adoptive, step-parent, in-law, parent of domestic partner, or legal guardian); and
    • an "individual who is a pregnant woman, senior citizen, individual with a disability, or has access of function needs and who is" the employee's: 
      • child (regardless of age),
      • next of kin (or a person for whom the employee is the next of kin), or
      • grandparent or grandchild

 

6. Reinstatement Rules Under Amended FMLA: Reinstatement following a Public Health Emergency Leave is required for employees of employers with at least 25 employees. For employers with fewer than 25 employees, the requirement to reinstate employees may not apply under certain circumstances.

 
Paid Sick Leave Benefits:

This section of the Bill is known as the Emergency Paid Sick Leave Act" ("EPSLA") and applies only to government employers and private employers with fewer than 500 employees. Some major provisions are as follows:
  1. Amount of Leave: Full-time employees would be entitled to up to 80 hours of paid sick time immediately for a covered purpose, regardless of how long the employee has been employed by the employer. Part-time employees would receive a number of hours equal to the number of hours that the employee works, on average, over a two-week period. 
2. Reasons for Use:  
    • the employee has been diagnosed with coronavirus and needs to self-isolate;
    • the employee is experiencing the symptoms of coronavirus and needs to obtain a medical diagnosis or care;
    • an authorized public official or health care provider has determined that the employee's presence on the job would jeopardize the health of others because the employee:
      • has been exposed to coronavirus, or
      • exhibits symptoms of coronavirus;
    • to care for or assist a family member for any of the above reasons ("family member" is broadly defined); or
    • to care for the employee's child because the child's school or place of care has been closed, or the child's care provider is unavailable due to coronavirus.
 
3. Rate of Pay: Employees are to be compensated at either their regular rate of pay, the federal minimum wage, or the local minimum wage, whichever is greater. Please note that if the employee is absent to care for a sick family member or a child who is unable to attend school or stay with a childcare provider, the employee need only be compensated at two-thirds (2/3) of the rate they would otherwise receive.
 
4. Number of Hours: Employees are to be paid based on "the number of hours the employee would otherwise be normally scheduled to work" over a two-week period. The Secretary of Labor has been directed to issue further guidance regarding the required compensation for EPSLA leave. Guidance also will be issued concerning how to calculate "number of hours" for part-time employees with such varying schedules from week to week that the 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."
 
EPSLA leave is in addition to any paid leave plan a covered employer may already have in place, as well as any paid sick leave benefits an employee may be entitled to under any other federal, state, or local law, or a CBA. An employer may not require an employee to use other paid leave provided by the employer before the employee takes EPSLA leave, but an employee may choose to do so.

Further, employers may not alter any of their paid sick leave policies after the enactment of the Bill to avoid compliance with the proposed law, nor may they require (as a condition of providing EPSLA leave) that an employee search for or find a replacement employee to cover for them while on EPSLA leave.

Finally this Bill also contains employer posting requirements, employee notices and anti-discrimination provisions and penalties.
 
Tax Credits:

The Bill provides for a tax credit equal for the EPSLA leave and Public Health Emergency Leave under the FMLA paid by an employer as follows:
  • The cap for EPSLA wages takes into account both the daily wage amount and the total aggregate number of days. Specifically, the aggregate number of days for each employee is capped at 10, over the aggregate number of days taken into account for all calendar quarters. To care for a family member under EPSLA, the amount is capped at $200 a day. For all other uses of the EPSLA leave (self-isolation because of a diagnosis, obtaining medical care or a diagnosis, or not working to comply with a health care provider or public official recommendation), the amount is capped at $511 a day;
 
  • With respect to Public Health Emergency Leave under the FMLA, the Bill similarly provides for a tax credit equal to 100 percent of the qualified family leave wages paid by an employer in a calendar quarter, up to a cap. For an employer seeking a tax credit for providing an employee qualified family leave wages, the tax credit must not exceed, with respect to each employee (i) $200 for any day (or portion thereof) for which the employee is paid qualified family leave wages, and (ii) $10,000 in the aggregate for all calendar quarters.
The tax credit is applied against an employer's portion of Social Security taxes, but employers are reimbursed if their costs for leave exceed the taxes they would owe. It is an employer's right to not take the tax credit. As double benefits are prohibited, employers cannot take deductions for the amount of any tax credit.
 
Conclusion: These are just highlights of this House Bill and should not be relied upon as any legal advice. Additionally, things in our current environment remain fluid and ever changing as the Senate undertakes review of this Bill.
 
Spognardi Baiocchi will continue to monitor this situation but in the meantime, should you have any further questions or concerns, please reach out to us. We are here to help during this uncertain time.
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
DISCLAIMER: All content in this Monday Morning Minute is intended for general information only, and 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 seek professional advice.