FAQ on FMLA

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Here is a quick reference guide to the new federal sick and family leave law. Please check back frequently for updates as we provide them.

THE BASICS AND COMMON QUESTIONS:

QUESTION ANSWER
What is the current status of the law? President Trump signed into law H.R. 6201, the Families First Coronavirus Response Act, on March 18, 2020.
When does the law take effect? April 2, 2020
Does the law have an expiration date? December 31, 2020
How does the law affect employers? There are three main areas where the law impacts some employers:

·         Paid Family Leave: Amends the FMLA to require all private employers with fewer than 500 employees to provide leave to workers who need to care for children without school/child care because of COVID-19.

·         Paid Sick Leave: Requires all private employers with fewer than 500 employees to pay sick leave to employees who cannot work (or telework) because of government quarantine or isolation orders, they are experiencing symptoms of COVID-19 and seeking a medical diagnosis, because they are caring for someone in quarantine or isolation, or because they need to care for children without school/care because of COVID-19.

·         New tax credits for employers required to provide the foregoing benefits (up to applicable caps).

Who does the law cover? Private employers employing fewer than 500 employees.
Why does the law only apply to business with fewer than 500 employees? There is no official explanation, but the reason is apparently nothing more than a political compromise. Most larger companies already have existing sick leave policies (though often not as much as what the new law provides for smaller employers). Also, because the cost of mandated benefits will ultimately be borne by the federal government through the tax credits, it is likely that the cost of extending these benefits to larger employers would be too costly.
If an employee cannot work because of a “shelter in place” order (e.g. California’s “Stay at Home” Executive Order) is she entitled to benefits? We are closely monitoring this issue because the law is unclear and there has not yet been any definitive guidance.  Arguably, a “shelter in place” law places restrictions on individuals akin to a quarantine or isolation, which would then qualify an employee for paid sick leave under the new law.  However, the language in the new statute could also be interpreted to only apply to situations where a government order applies to a specific individual (and not, e.g. a city or county), directing that individual to quarantine or isolate.   Further guidance will be needed on the application of the law in these circumstances.
Do the new paid sick leave and family leave benefits apply to employees on furlough? Arguably no.  In order to be eligible for leave, employees must be unable to work (or telework) due to a need for leave. But employees on furlough have no work. Thus, even though they are “employees,” an argument could be made that they are not “unable to work or telework due to a need for leave.” Further guidance will be needed on the application of the law in these circumstances.
How does the law affect a multi-employer bargaining unit? Employers with fewer than 500 employees that contribute to multiemployer plans for bargained employees can satisfy the paid leave requirements by making contributions to a plan and the plan, in turn, would then have to provide the paid leave compensation directly to the employees.  It is unclear whether multiemployer plans are required to offer this benefit or whether employers are required to make these contributions only to those plans that choose to offer this benefit.  Further guidance will be needed on the application of this provision.

PAID SICK LEAVE

QUESTION ANSWER
What does the law provide? Requires all private employers of fewer than 500 employees to pay emergency sick leave to employees who cannot work (or telework) because any of the following:

·         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 who is subject to a quarantine/isolation order or advised to self-quarantine, or

·         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

Which employers are affected? Employers with fewer than 500 employees.
Must employees have a minimum amount of service to take paid sick leave? No.  The paid sick time under this law shall be available for immediate use by the employee regardless of how long the employee has been employed by an employer.
How much paid sick leave is an employee entitled to? ·         For full-time employees, 80 hours

·         For part-time employees, a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.

·         For part-time employees with variable weekly schedules (to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked), 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 any hours for which the employee took leave of any type.

·         Sick leave does not carry over if not used in 2020.

At what rate must an employee be paid sick leave? It depends whether the employee herself/himself is subject to COVID-19 quarantine or diagnosis.

An employee is entitled (up to a maximum of $511 per day and $5,110 in the aggregate) to the greater of either her/his regular rate of pay, federal minimum wage, or state/local minimum wage for the hours she would otherwise work  if:

·         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.

An employee is entitled (up to $200 per day and $2,000 in the aggregate) to the greater of either two-thirds of her/his regular rate of pay, federal minimum wage, or state/local minimum wage for the hours she would otherwise work if:

·         The employee is caring for a family member who is subject to a quarantine/isolation order or advised to self-quarantine

·         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

May an employer require an employee to find a replacement to cover the hours she’s out sick? No.  An employer may not require, as a condition of providing paid sick time, that the employee involved search for or find a replacement employee to cover the hours during which the employee is using paid sick time
May a business require an employee to provide reasonable notice of sick time? After the first workday (or portion thereof) an employee receives paid sick time, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.
May a business require an employee to use other paid leave before this paid sick time? No.  An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses this paid sick time.
Must an employer pay out unused sick time to a terminated employee? No.  An employer is not required to reimburse unused paid sick time.
Can employers change their pre-existing policies? Presumably yes, as there is no prohibition on doing so in the law.  The House removed language that stated that the new federal paid sick leave is in addition to any existing sick leave under any state law or company policy.  The new law also no longer states that an employer cannot change its sick, vacation, or PTO policy now to account for the new additional paid sick leave obligations.
Will the government provide any further guidelines? Yes.  By April 2, the Secretary of Labor shall issue guidelines to assist employers in calculating the amount of paid sick time
Must employers provide notice of this paid sick leave law? Yes.  Each employer shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, to be prepared or approved by the Secretary of Labor, of the requirements described in this Act. The Secretary of Labor shall make publicly available a model of a notice by March 25.
Are there tax credits for employers who must pay sick leave? Yes.  Employers are eligible for a payroll tax credit for paid sick leave.  The credit is taken against FICA taxes and, if the leave cost exceeds the payroll tax, the excess is paid to the employer like a refund of an overpaid tax.  The  maximum credit is  $200 per day or $511 per day in the case  of an individual subject to COVID-19 quarantine or diagnosis.
Are any businesses with fewer than 500 employees exempt from the law? Small business with fewer than 50 employees may possibly be exempt in the future.  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

·         to exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business as a going concern

However, the law provides no further indication of how an employer may petition for an exemption, or what the criteria will be to determine such an exemption. Presumably, the U.S. Department of Labor will provide such guidance in the coming weeks

What are the penalties for noncompliance? An employer that does not provide paid sick leave to employees will be considered to have failed to pay minimum wages under the FLSA and be subject to penalties related to such a violation.  Willful violations could result in steeper penalties.

PAID FAMILY LEAVE

QUESTION ANSWER
What does the law provide? The law amends the Family and Medical Leave Act (“FMLA”) to require all private employers of fewer than 500 workers (i.e., even those with fewer than 50 employees) to provide leave to workers who need to care for children who are unable to attend school or day care because of COVID-19.
Do the usual FMLA certification rules apply to the expanded FMLA? Presumably yes.  The new law is grafted onto the FMLA and does not address this issue.
Which employers are affected? Employers with fewer than 500 employees.
Which employees are eligible? Solely for this emergency child care leave, the term ‘eligible employee’ means an employee who has been employed for at least 30 calendar days by the employer with respect to whom leave is requested.
When can an employee take paid family leave? The employee is unable to work (or telework) because she has to care for a son or daughter under 18 years of age whose elementary or secondary school or place of child care has been closed, or the child care provider (person who receives compensation for providing child care services on a regular basis) of such son or daughter is unavailable, due to an emergency with respect to COVID–19 declared by a Federal, State, or local authority.
I thought the new law provided FMLA leave for other COVID-19-related reasons? A prior version of the bill provided family leave for additional reasons.  However, the House amended the bill on March 16 to narrow the basis for paid family leave to care for a child who is unable to go to school or day care..
Can someone use paid family leave if she is quarantined due to COVID-19? No.  The new paid family leave benefit is only available to care for a son or daughter under the age of 18 whose school or day care is closed.
Is there a limit how long the employees may be on paid family leave? 12 weeks of job-protected leave.

Leave under this law also counts towards an employee’s 12 weeks of FMLA leave (e.g. for a non-coronavirus serious health condition), assuming they otherwise qualify.

Is there a limit on how much employees may be paid for leave? Yes.  $200/day and $10,000 in the aggregate
How much do employees get paid and when? The first 10 days for which an employee takes leave may consist of unpaid leave.  An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.  (One may ask why the first 10 days of paid family and medical leave are unpaid; the reason is because presumably most employees will choose to use their allotted 80 hours (i.e. approximately 10 days) of paid sick leave during this 10 day initial period)).

After 10 days, the employer must compensate the employee the lesser of either (i) two-thirds of an employee’s regular rate of pay for the number of hours the employee would otherwise be normally scheduled to work, or (ii) $200 per day and $10,000 in the aggregate.

Does the employee need to be reinstated to her/his position? Yes, with a possible exception for an employer with fewer than 25 employees, if the employer meets the following conditions:

·         Employee takes leave

·         The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer— (i) that affect employment; and (ii) are caused by an emergency with respect to COVID–19 declared by a Federal, State, or local authority

·         The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.

·         If reasonable efforts to restore fail, the employer must make reasonable efforts for one year to contact the employee if an equivalent position becomes available

Are there tax credits for employers who must pay family leave? Yes.  Employers are eligible for a payroll tax credit for paid family leave.  The credit is taken against FICA taxes and, if the leave cost exceeds the payroll tax, the excess is paid to the employer like a refund of an overpaid tax.  The  maximum credit is  up to 100% of the qualified family leave wages paid (capped at $200 per employee per day and $10,000 per employee in the aggregate).
Are any businesses with fewer than 500 employees exempt from the law? An employer of an employee who is a health care provider or an emergency responder may elect to exclude employees from paid family leave.

Small business with fewer than 50 employees may possibly be exempt in the future.  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

·         to exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business as a going concern

However, the law provides no further indication of how an employer can petition for an exemption, or what the criteria will be to determine such an exemption. Presumably, the Labor department will provide such guidance in the coming weeks

What are the penalties for noncompliance? An employer who does not provide paid sick leave to employees will be considered to have violated the FMLA be subject to penalties related to such a violation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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