A new federal law will go into effect on April 1, 2020 that affects all employers with less than 500 Employees.  The Families First Coronavirus Response Act (“Act”) is part of an economic stimulus package and offers Employees emergency protections for absences related to COVID-19.  Please be advised we are waiting for regulations from the Department of Labor which may alter this guidance.  Here are some frequently asked questions:

Question:  What parts of this new law will affect my small business?

Answer:  Two provisions that will affect most Small Businesses are the Employee Paid Sick Leave (“EPSL”) and the Emergency Family Medical Leave Act (“Emergency FMLA”).

Question:  What reasons can an Employee get paid sick leave under this law?

Answer:  There are six Qualifying Reasons an Employee can take paid sick leave under EPSL.  An Employee qualifies for paid sick time if the Employee is unable to work (or unable to telework/work remotely) due to a need for leave because the Employee:

(1)       Is subject to a Federal, State or local quarantine or isolation order related to COVID-19 (not exempted by said Order);

(2)       Has been advised by a health care provider to self-quarantine related to COVID-19;

(3)       Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

(4)       Is caring for an individual subject to an order described in (1) above or self-quarantine as described in (2) above.

(5)       Is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or

(6)       Is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury. (no specified conditions at this time).

Please note that this list applies to all Employees, even if they have been employed less than 30 days.

Question:  How long can an Employee be out on paid sick leave?

Answer:          A full time Employee can take up to 80 hours (2 weeks) of paid sick leave for one of the reasons provided above.  A part time Employee can take up to the average number of hours such Employee works over a two week period.

Question:  What do I have to pay my Employees for sick leave under this law?

Answer: For full-time Employees under government quarantine, under self-quarantine or experiencing symptoms due to COVID-19, the pay rate is regular pay, up to $511/day or $5,110 over the two week period.

For Employees unable to work in order to care for an individual under government or self-quarantine due to COVID-19 or to care for a minor child whose school or childcare has closed for COVID-19 reasons, the pay rate is two-thirds the Employee’s regular rate of pay, up to $200/day or $2,000 over the two week period.

Question:  Can I require an Employee to use vacation/PTO/or other leave before they take sick leave under this law?

Answer:          No. This EPSL benefit is immediate and must be given before any employer benefits are utilized.

Question:  Why do I have to worry about FMLA?  I thought that was only for businesses with over 50 Employees?

Answer:          Yes, it is true that regular FMLA did not apply to employers with less than 50 Employees, however, the Emergency FMLA does.  This is a temporary law meant to help parents during the pandemic.

Question:  When can an Employee use EMERGENCY FMLA?

Answer:          An Employee who has been employed for at least 30 calendar days is entitled to Emergency FMLA if they must miss work to care for a minor child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.  This provision would not apply if the Employee can work remotely.

Question:  How much time can an Employee take under EMERGENCY FMLA?

Answer:          A fulltime Employee can take leave for up to 12 weeks.

A part-time employee is entitled to leave for his or her average number of work hours over the 12 week period.

The 12 weeks can run concurrent with the paid sick leave time, meaning the 2 weeks of paid sick leave would run at the same time.

Question:  What do I have to pay my Employees for EMERGENCY FMLA?

Answer:          The first ten days of leave may be unpaid.  The remaining time is paid at two-thirds of the Employee’s regular pay up to $200/day or $10,000 over the benefit period.  The Employee may use other paid leave, if available, during the initial ten day period only, but generally an Employee will use the EPSL benefit during the initial period.

Question:  Can I require proof that the Employee qualifies for either type of leave?

Answer:          Yes, an Employer may request certification/documentation of the Employee’s need for leave.

Question:  Are there posting requirements to advise Employees of these rights?

Answer:          Yes.  They are currently available in English and Spanish on the Department of Labor website. Here is a link:  https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/1422-spanish.pdf

Question:  When does the law take effect?

Answer:          The law takes effect on April 1, 2020.

Question:  How long with the law stay in effect?

Answer:          The law will expire on December 31, 2020.

Question:  Can an Employee carry over unused paid sick leave under this law?

Answer:          No.  Any unused paid sick leave under this EPSL will expire on December 31, 2020.

Question:  What are the penalties for violations?

Answer:          Employers are subject to damages and penalties as under the Fair Labor Standards Act (“FLSA”) for minimum wage violations, including unpaid wages, an additional equal amount as liquidated damages, and attorneys’ fees and costs.

Employers that unlawfully discharge, discipline, or otherwise discriminate against an eligible employee under the act are subject to injunctive relief under the FLSA, including reinstatement, as well as damages and penalties for unpaid wages, an additional equal amount as liquidated damages, and attorneys’ fees and costs.

Question:        Do the “stay at home” proclamations qualify as a quarantine order under the EPSL?

Answer:          Probably not.  We are waiting for the Department of Labor to issue guidance on this.

NOTE: The information in this article is not intended as legal advice, and it should not and cannot substitute for individual consultation with a qualified attorney.  This information presented is for informational purposes only and may not be complete or up-to-date.