EMPLOYMENT LAW ALERT: COVID-19

  
 

Federal COVID-19 Legislation – Part I

Last week, the House of Representatives passed a bill (H.R. 6201) that amends family and medical leave laws in light of COVID-19. Last night, the House unanimously passed an amended version of the bill, which is being sent to the Senate for consideration. The following summarizes the changes H.R. 6201 would make to certain federal employment and employee benefits laws. We invite you to contact us for any additional questions you may have relating to COVID-19 legislation.

Q. What are the family and medical leave changes proposed in the House bill?

A.  Section C of the bill contains the new Emergency Family and Medical Leave Expansion Act. Section E contains the new Emergency Paid Sick Leave Act. In general, the most significant developments are that employees will be entitled to leave for COVID-19 related issues and some of that leave must be paid by the employer.

Emergency Family and Medical Leave Expansion Act

Q.  When is paid leave required?

A.  The bill would temporarily add a new type of family and medical leave to the FMLA. Specifically, a new Section 110 would add “public emergency health leave” to the types of leave qualifying employees may take.

Q.  Does the House bill change which employers are covered by the FMLA?

A.  Yes, but only for COVID-19 leave. The FMLA normally applies to employers with 50 or more workers. The COVID-19 leave provisions apply to employers with fewer than 500 employees. That includes employers with fewer than 50 workers.

Q. Does the bill change which employees the FMLA covers?

A.  Again, yes, but only for COVID-19 leave. Employees are eligible (assuming their employer is covered) if they have worked for their employer for at least 30 calendar days. This includes part-time workers.

Q.  When is COVID-19 leave required under the House bill?

A.  The House bill makes several changes to FMLA definitions that would expand the occasions in which leave must be provided, but only for COVID-19 leave. For example, the House bill expands the definition of “parent” for COVID-19 leave to include step-parents, in-laws, and parents of domestic partners.

Q.  What is COVID-19 leave?

A.  COVID-19 leave is provided when a public official or a health care provider recommends leave on the basis that:

1.  the physical presence of the employee on the job would jeopardize the health of others because of:

-  the exposure of the employee to coronavirus; or

-  exhibition of symptoms of coronavirus by the employee; and

This applies only if the employee is unable to both perform the functions of his or her position and comply with such recommendation or order.

2.  to care for a family member if a public official or a health care provider determines that the family member's presence in the community would jeopardize the health of other individuals in the community because of:

-  the exposure of the family member to coronavirus; or

-  exhibition of symptoms of coronavirus by the family member.

3.  to care for the employee’s minor son or daughter if their school or place of care has been closed, or the child care provider is unavailable.

Q.  When would COVID-19 leave need to be paid leave?

A.  An employee’s first 14 days of qualifying leave may be unpaid. During that period, an employee can choose to substitute accrued vacation leave, personal leave, or other medical or sick leave, but the employer may not require the employee to use accrued paid leave. Additional qualifying leave after 14 days would have to be paid at a rate of 2/3 of the employee’s normal wage and on the assumption that the employee is working a normal schedule.

Q.  Does the House bill apply to nonprofits and religious organizations?

A.  As written, yes. The FMLA generally applies to all employers that meet the coverage tests, whether commercial, for profit, nonprofit, or charitable. Employees of religious organizations who are “ministers” may be exempt under the so-called ministerial exception to employment laws.

Q.  Does the House bill apply to small businesses?

A.   As noted, COVID-19 leave applies only to employers with fewer than 500 employees, The Bill does not indicate when a "snapshot" of the workforce must be taken, but presumably the 500-worker threshold should be assessed when the new law (if any) takes effect. The House bill authorizes the Secretary of Labor to exempt small business with fewer than 50 employees from the COVID-19 leave requirements if those requirements "would jeopardize the viability of the business as a going concern." In addition, while FMLA leave is normally job protected, employers with fewer than 25 employees are relieved of the obligation to restore workers to their pre-leave positions in limited circumstances.

Q.  Does the House bill apply to unionized workplaces?

A.  Yes. Note that special provisions apply to employers that participate in multi-employer collective bargaining agreements.

Q.  Would the House bill make additional changes?

A.  Yes. However, given that any final legislation could differ substantially, we will address details in Part II of our client alert.

Emergency Paid Sick Leave Act (EPSLA)

Q.  What does the EPSLA do?

A.  The EPSLA is proposed stand-alone legislation, rather than an amendment to the FMLA. It requires employers to provide paid leave in covered situations.

Q.  When is paid leave required?

A.  In five situations. When an employee is absent:

1.  to self-isolate because the employee is diagnosed with coronavirus.

2.  to obtain a medical diagnosis or care if the employee is experiencing the symptoms of coronavirus.

3.  to comply with a public official's or a health care provider's recommendation on the basis that the employee's job presence would jeopardize the health of others because of

-  the exposure of the employee to coronavirus; or

-  exhibition of symptoms of coronavirus by the employee.

4.  to care for or assist a family member of the employee

-  who

-  is self-isolating because the family member has been diagnosed with coronavirus; or

-  is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care.

-  with respect to whom a public official or a health care provider determines that the presence of the family member in the community would jeopardize the health of other individuals in the community because of

-  the exposure of the family member to the coronavirus; or

-  exhibition of symptoms of coronavirus by the family member.

5.  to care for the child of the employee if the school or place of care has been closed, or the child care provider of such child is unavailable, due to coronavirus.

Q.   How much paid leave may employees receive?

A.   In general, employees must receive the pay they would have gotten based on the hours they "would otherwise be normally scheduled to work" at their regular rate of pay. However, for paid leave required to care for a family member or child, paid leave is reduced to two-thirds.

Q.   Does the ESPLA cover the same employers and employees as the FMLA?

A.   Employers required to provide COVID-19 leave--that is, those with 500 or fewer employees--are covered by the ESPLA. The ESPLA covers every worker, not just those who have been on the job for a certain length of time.

Q.  Are there limits on the duration of paid sick leave?

A.  Yes. The limit for full-time employees would be 80 hours. For part-time employees, the limit is the average number of hours the employee works in a two-week period.

Q.  Is paid leave required even if we already offer it?

A.  Yes. Paid leave under this new law would be required in addition to any paid leave provided under existing workplace policies.

Keep in mind that the above information discusses only proposed legislation. As noted, we will keep you updated on any final legislation involving paid leave for the coronavirus pandemic. In the meantime, please do not hesitate to contact us with any questions.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.