Updated: March 27, 2020
On March 18, 2020, the U.S. House of Representatives and U.S. Senate passed a bill that, once signed into law, will impose significant changes upon employers’ sick leave and family and medical leave requirements. President Trump has publicly signaled support for this bill’s passage, and it likely will be signed into law in short order. The following is a brief summary of the bill’s requirements.
The bill has two key components: (1) emergency paid sick leave, and (2) emergency paid family and medical leave expansion. Once passed, the bill will require employers to comply within 15 days after its date of enactment. The new law becomes effective on April 1, 2020 and is set to expire on December 31, 2020.
Emergency Paid Sick Leave
All private employers with fewer than 500 employees, and all government employers regardless of size, are covered under the emergency paid sick leave portion of the bill. Any current employees of an employer covered by the bill would be entitled to some amount of emergency paid sick leave, regardless of whether the employee is part-time or full-time. The bill does not require that an employee be employed for a minimum amount of time to be entitled to leave.
Specifically, the bill would require covered employers to provide up to two weeks of paid sick leave to employees affected by COVID-19. Full-time and part-time employees would be subject to differing requirements. Full-time employees would be entitled to two weeks (i.e., 80 hours) of paid sick leave. Part-time employees, however, would be entitled to the equivalent of two weeks of paid sick leave, based on the average number of hours the part-time employee works. For example, if a part-time employee is regularly scheduled to work 20 hours per week, the employee would be entitled to 40 hours of total paid sick leave.
An employee may use emergency paid sick leave under the bill for any of the following purposes:
- Quarantine — to comply with a federal, state or local quarantine or isolation order related to COVID-19
- Self-Quarantine — to self-quarantine, if the employee has been advised to do so by a local healthcare provider
- Diagnosis or Treatment — to obtain a medical diagnosis or treatment if the employee is experiencing symptoms of COVID-19
- Care for a Quarantined Individual — to care for an individual required to be quarantined or advised to be quarantined
- Child Care — to care for an employee’s child if the child’s school or child care provider has been closed or is unavailable due to COVID-19-related issues
- Substantially Similar Care — to care for a substantially similar condition, as determined by the secretary of health and human services
Total paid leave is capped at $511 per day and $5,110 in the aggregate (per employee) for leave due to items 1, 2 and 3 above. For items 4, 5 and 6 above, total paid leave is capped at $200 per day and $2,000 in the aggregate (per employee).
Employees, however, may not use paid sick leave under the bill if they are unable to work solely due to business decisions or operational closures.
Family and Medical Leave Expansion
The family and medical leave aspect of the bill applies to all private employers with fewer than 500 employees, and to all government employers regardless of size. However, the most recent revision contains an exemption for small businesses with fewer than 50 employees if its requirements would jeopardize the viability of the business. All employees who have been employed for at least 30 calendar days would be covered by the family and medical leave expansion.
Employers would be required to provide up to 12 weeks of job-protected paid leave under the Family and Medical Leave Act (FMLA) for COVID-19. The first 10 days of such leave may be unpaid. Employees may use accrued paid leave during the first 10 days, but may not be required to do so. After the first 10 days, the employer must compensate the employee in an amount not less than two-thirds of the employee’s regular rate of pay. However, total paid leave under the bill may not exceed $200 per day and $10,000 in the aggregate (for each employee).
Employees may take this new, paid leave under the bill only if the employee is unable to work (or telework) due to a need for leave to care for a child under age 18 if the child’s school or place of care has been closed, or if the child care provider is unavailable due to COVID-19. This is significantly more limited than the initial draft of the bill, which provided paid FMLA leave for employees who are quarantining or exhibiting symptoms of COVID-19, or caring for others who are quarantining or exhibiting symptoms.
Employees taking leave under this provision of the bill are entitled to job protection, similar to regular FMLA leave. In the final version of the bill, an exception from the job protection requirement applies to employers with fewer than 25 employees, provided, among other things, that the employer makes reasonable efforts to restore the employee’s position.
Finally, the bill provides immunity from employee civil lawsuits stemming from COVID-19 leave for small employers who fall under the COVID-19 leave provisions, but who would not meet the standard, 50-employee threshold for FMLA coverage.
McGuireWoods will continue to monitor the progress of this and other COVID-19 related legislation and provide updates along the way.
For answers to questions or additional guidance on how this new legislation may impact your business, employers can contact the authors, any of the McGuireWoods COVID-19 Response Team members or your McGuireWoods Labor and Employment contact.