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Congress Passes “Families First Response Act” By Bill Boznos, of Boznos Law Office

The U.S. Senate voted to send the first major federal law to President Trump’s desk in an effort to mitigate the impact COVID-19 has on the country. The law contains two provisions that all employers should be aware of right away—federally mandated paid sick leave and additional Family & Medical Leave Act (“FMLA”) protections for employees who must miss work for COVID–19-related reasons.

All employees, full-time and part-time, are eligible for the short-term paid sick leave. Employees are eligible regardless of when the employee started working for the employer.

All employees, full-time and part-time, are eligible for the long-term paid leave. However, to be eligible for the long-term leave, the employee must have been employed for at least 30 days.

First, the Act requires employers to provide full-time employees 2 weeks of paid sick leave for an employee who must miss work as a result of COVID–19 because:

(1)    the employee is subject to a federal, state, or local quarantine or isolation order;

(2)    a health care provider has advised the employee to self-quarantine;

(3)    the employee is having COIVD–19 symptoms and is seeking diagnosis;

(4)    the employee is caring for someone else who subject to (1) or (2); or

(5)    the employee is caring for a child whose school or child-care services are unavailable.

Pay for leave under (1)–(3) must be at the employee’s regular rate while employees who must miss work for (4) or (5) are to be paid at two-thirds of their regular rate. All leave required under the Act is in addition to any paid leave or time off employers already provide their employees.

Second, Congress broadened the scope of FMLA to include “public health emergency leave” for employers with fewer than 500 employees and to include employees who must take leave for COVID–19-related reasons. Leave taken under the new provision is unpaid for the first 10 days and paid thereafter at two-thirds of the employee’s regular rate for up to 12 weeks. Employees who take Public health emergency leave enjoy the same job-protection benefits guaranteed under FMLA generally. Employers who must provide paid sick leave or FMLA leave under the Act are eligible for tax credits in the amounts paid.

For the 10 weeks of long-term FMLA leave, the employer must pay two-thirds of the employee’s regular wage.

However, regardless of the employee’s salary, the bill limits the amount of payments the employer must make, so that such payments will be equal to the tax credit the employer will receive in return.

For sick leave payments, that means an employee may receive up to $511 per day and $5,110 in the aggregate if the employee uses the sick time because of his or her own needs. The employee may receive up to $200 per day and $2,000 in the aggregate if the employee uses the 10 sick days to care for someone else.

For long-term (FMLA) payments, the employee may receive $200 per day and $10,000 in the aggregate.

For purposes of the long-term paid FMLA leave, the only qualifying reason for that leave is if the employee is unable to work or telework because he or she must care for a child (under 18 years of age) if, due to a declared public health emergency related to COVID-19:

  • the child’s school or place of care has been closed, or
  • the child’s care provider (someone who receives compensation for providing child care on a regular basis) is unavailable

If the closure of the school or place of care, or the unavailability of the child care provider is foreseeable, the employee must provide the employer with notice of leave as is practicable.

The paid sick time does not carry over to the following year. Employers are also not required to reimburse employees for paid sick time not used by the employee when the employee leaves the job.

There are requirements in the Act that employers post notices to their employees of the availability of the paid leave mandated by the statute.  There will be civil penalties for covered employers who fail to provide the leave required by the bill, or who discriminate or retaliate against employees who seek to use the benefits provided under the law.

On its face, the bill does not address the circumstance in which an employer shuts its operations down completely during for a period during this outbreak, but does not go out of business. Employers contemplating this option should consider whether they have obligations under the WARN Act.  Employees laid off in these circumstances presumably will file claims for unemployment compensation, and the bill includes federal subsidies and other assistance for state unemployment compensation systems.

Both the paid family and medical leave mandate and the paid sick leave mandate expire December 31, 2020.

NOTE TO READERS: Please be aware that changes in governmental guidance, and even in the underlying laws, are occurring on almost a daily basis, which will affect the analysis of the legal issues related to COVID-19. It is critical that employers stay current.

As you can see, there are a number of questions and areas of potential uncertainty brought about by this national health crisis which can dramatically affect the employment relationship. Only a law firm that concentrates in employment related matters can help guide you through this minefield. With over 36 years’ experience in advising employers and employees on workplace issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the changes to the employment laws. Call Bill Boznos today at (630) 375-1958 or contact us at www.boznoslawoffice.com/contact-us through our website.

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