By Joseph S. Brown, Esq.
In response to the impact that COVID-19 is already having in the workplace, state and federal lawmakers have proposed legislation and relaxed certain regulatory requirements to assist employers and employees during these difficult and uncertain times.
Families First Coronavirus Response
In the wee hours of Saturday, March 14, 2020, the U.S. House of Representatives passed the Families First Coronavirus Response (H.R. Bill 6201 [“the Bill”], available at https://docs.house.gov/billsthisweek/20200309/BILLS-116hr6201-SUS.pdf), sweeping legislation that will provide a myriad of emergency relief to businesses and individuals, including paid family and sick leave.
The Bill is expected to be considered quickly by the Senate – although recent news reports suggest the Bill may remain in the House for a week to address technical changes before it’s delivered to the Senate. Because the Bill passed with bi-partisan support (by a vote of 363-40) and President Trump has already indicated his support on Twitter, it is likely to be passed by the Senate in some form.
The Bill, in its current format, amends several key provisions of the federal Family and Medical Leave Act (“FMLA”) and also provides for up to 80 hours of paid sick leave for full-time employees. This alert briefly summarizes two key sections of this 110-page Bill that may be of interest to clients:
“Division C – Emergency Family and Medical Leave Expansion Act”
“Division E – Emergency Paid Sick Leave Act”
As to the Emergency Family and Medical Leave Expansion Act, some of the key provisions of the Bill are as follows:
- Employee: Amends the definition of employee to anyone who has been employed by an employer for at least 30 days.
- Covered Employer: Changes the definition of employer from "50 or more employees" to "fewer than 500 employees."
- Definition of Parent: Expands the definition of parent to include foster and adoptive parents, step-parents, parents of a domestic partner, parental in-laws, guardians, and those who stood in loco parentis.
Reasons for Leave:
- To adhere to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus;
- To care for an at-risk family member who must quarantine due to exposure to or symptoms of coronavirus; and
- To care for a child of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to coronavirus.
What Portion is Paid?
- The first 14 days of emergency FMLA leave are unpaid, except when the employee elects to run accrued PTO concurrently. (Unlike other forms of FMLA leave, the employer may not require this.)
- After two weeks, employees get paid at least two-thirds of the employee’s usual pay.
The Bill requires job restoration following any such leave for any employee of an employer with 25 or more employees. The Bill allows subsequent regulations to exclude certain healthcare providers and emergency responders from the definition of eligible employee and to exempt small businesses with fewer than 50 employees when it would jeopardize the viability of the business as a going concern.
As to the Emergency Paid Sick Leave Act, the Bill provides 80 hours of paid sick leave for full-time employees (or pro-rata for part-time employees) for the following reasons:
- To self-isolate because the employee is diagnosed with COVID-19;
- To obtain a medical diagnosis or care if the employee is experiencing the symptoms of COVID-19;
- To comply with a public official or a health care provider order or recommendation that the physical presence of the employee on the job would jeopardize the health of others due to COVID-19 exposure;
- To care for the employee’s family member who is self-isolating because the family member has been diagnosed with or is experiencing symptoms of COVID-19 and/or needs to obtain medical diagnosis or care;
- To care for a family member if a public official or a health care provider determines that the presence of the family member in the community would jeopardize the health of others due to COVID-19 exposure; and
- To care for the child of such employee if the school or child care has been closed due to COVID-19.
Significantly, if an employer already offers paid sick leave to its employees, coronavirus paid sick leave must be in addition to the already-existing leave, and an employer cannot amend its sick leave policy to avoid offering additional leave. The Bill also prohibits discrimination or retaliation. Finally, to help defray the cost of the paid leave, the Bill makes available a tax credit equal to 100 percent of sick leave wages paid by an employer.
If enacted, the Emergency Paid Sick Leave Act would take effect no later than 15 days after the enactment of the Bill, and would expire on December 31, 2020.
Hurwitz & Fine will continue to monitor this legislation and provide an update on any final law signed by President Trump.
New York State Law
On March 3, 2020, New York Governor Andrew Cuomo announced he will seek to amend the paid sick leave bill to allow those with the virus who are quarantined to be paid by their employers. Recent news reports suggest that a law will likely be passed early next week, however, no specifics have been provided.
In the meantime, Governor Cuomo recently signed an executive order waiving the 7-day waiting period for Unemployment Insurance benefits for people who are out of work due to (COVID-19) closures or quarantines. See https://labor.ny.gov/unemploymentassistance.shtm
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Employment Practices team for guidance on this evolving issue at 716-849-8900 or visit our website at www.hurwitzfine.com