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Congress passes legislation on expanding paid sick leave, FMLA
By Amy Blaisdell on March 18, 2020 at 3:45 PM

U.S. CapitolCongress has passed legislation on extending employees' paid leave related to the coronavirus and expanding the FMLA, sending the bill to President Trump for his signature. 

As covered in a previous post, the U.S. House of Representatives last weekend passed a previous version of the bill. In the days since, the House had revised the legislation to update several of the provisions. The Senate passed the legislation on March 18 on a 90-8 vote.

Here are key provisions employers should note:

Emergency Paid Sick Leave Act

The legislation requires an employer with 500 or fewer employees to provide each employee paid sick time if employee is unable to work (including remotely) because of:

  1. A federal, state or local quarantine or isolation order related to COVID-19.
  2. Advice from a health care provider to self-quarantine due to concerns related to COVID-19.
  3. Suffering symptoms of COVID-19 and seeking a medical diagnosis.
  4. Caring for someone who is subject to a quarantine order or a health care provider’s advice to self-quarantine
  5. Caring for the employee’s child if the school or child-care provider has been closed, or if the child care provider is unavailable, due to COVID-19 precautions.
  6. 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. (An employer of a health care provider or an emergency responder may elect to exclude that employee from the application of this subsection.)

 Other key points:

  • Duration – Full-time employees are entitled to 80 hours of paid sick leave. Part-time employees are entitled to the number of hours worked, on average, over a two-week period. The time cannot be carried from one year to the next.
  • Termination of paid sick leave – Shall cease beginning with the employee’s next scheduled work shift after the termination of the need for paid sick time as described above.
  • Sequencing – An employee may first use the paid sick time under the Sick Leave Act. An employer cannot require that the employee use other sick leave before paid sick leave under the Act.
  • Paid sick leave calculation – Calculated based on compensation and the number of hours the employee would otherwise be normally scheduled to work, not to exceed:
      • $511 per day and $5,110 in the aggregate for employees who are under quarantine (government or health care ordered) or are experiencing symptoms of COVID-19 and being tested.
      • $200 per day and $2,000 in the aggregate for employees who are caring for quarantined or sick individuals or a child whose school or child care is closed or unavailable. In addition, if paid sick leave is taken in these circumstances, it is paid at two-thirds rather than 100 percent.
  • Hardship – The Secretary of Labor shall have the authority to issue regulations for good cause:
      • to exclude certain health care providers and emergency responders from the definition of employee, including by allowing the employer of such health care providers and emergency responders to opt out;
      • to exempt small businesses with fewer than 50 employees from the requirements if they would jeopardize the viability of the business; and
      • as necessary, to carry out the purposes of the Act.

Family and Medical Leave Expansion Act

  • Eligible employees are those who are employed for at least 30 days. Covered employers are those with fewer than 500 employees
  • Purpose of Leave – A qualifying need related to a public health emergency, which means the employee is unable to work (or telework) due to a need to care for a son or daughter under age 18 if the school or child care has been closed or is unavailable due to a public health emergency. (Child care provider means a provider who receives compensation for providing child care services on a regular basis. School means an elementary or secondary school).
  • Hardship – The Secretary of Labor shall have the authority to issue regulations for good cause:
      • to exclude certain health care providers and emergency responders from the definition of eligible employee; and
      • to exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business.
  • Relationship to Paid Leave –
      • The first 10 days may be unpaid, but the employee may elect to substitute accrued vacation leave, personal leave, or medical or sick leave for unpaid leave
      • Leave is paid at two-thirds after the 10 days for up to 12 weeks.

Tax Credits for Paid Sick and Paid Family and Medical Leave

Subject to certain limits, in the case of an employer, there shall be allowed as a credit an amount equal to 100 percent of the qualified sick leave wages and qualified family leave wages paid by the employer with respect to the calendar quarter.

Our Employment & Labor Practice Group is continuing to monitor these developments and is available to answer your coronavirus questions.

Link to COVID-19 Resources page

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