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The New FMLA And FLSA COVID-19 Provisions

Our goal is to continue to provide our clients and community with information on legal changes and resources in relation to COVID-19. In today’s blog we’re covering the changes affecting the Family Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA) passed by Congress and signed by President Trump this week.


The Emergency Families First Coronavirus Response Act (the full text of which can be found: here) has provisions for free coronavirus testing and increased aid for nutrition assistance, but also provides job-protected leave under the FMLA and paid sick leave under the FLSA. These changes are important for both employers and employees to understand, so let’s break those down.



Family Medical Leave Act Amendment


First, let’s look at the amendment to the FMLA. The bill amends the FMLA to give employees who work for employers with 500 or fewer employees up to 12 weeks of leave if the employee is unable to work or work remotely due to the need to care for a child due to the closure of a school or place of care, or a childcare provider is unavailable because of COVID-19.


This leave is job protected, meaning an employee can’t be fired for taking leave under this provision, and is subject to partial pay. Small businesses with fewer than 50 employees can be exempt from providing leave if the leave would result in expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity, employee’s absence would entail a substantial risk to the financial health or operationalvcapabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities; OR insufficient employees able, willing, and qualified at time and place needed to perform labor or services provided by the employee, and these labor or services are needed for business to operate at a minimal capacity.


To be eligible, an employee has to have worked for the employer for at least thirty (30) calendar days. The normal minimum hours threshold under the FMLA does not apply.

If an employee takes leave, the first two weeks of leave are unpaid. If the employee has any accrued paid leave or paid vacation time, he/she can use that during this unpaid period. After the first two weeks, an employee is entitled to receive from the employer at least two-thirds (⅔) of his/her normal wages for the number of hours that employee would normally be scheduled to work. The law does provide for a maximum cap of $200 per day and $10,000 total pay.


Employees can begin applying for leave under this provision starting April 2, 2020, but employees should provide their employer with as much notice as possible.

Remember we are only looking at this form of leave under FMLA, not the other forms of leave permitted and employers should be familiar with those.


Fair Labor Standards Act Amendment


The FLSA amendment provides for all employees who work for employers with 500 or fewer employees to be eligible for paid sick leave starting on the effective date of April 2, 2020.

An eligible employee may take paid sick leave if the employee is unable to work or work remotely for any of the following reasons:

  1. Employee is subject to a government-mandated quarantine or isolation order related to COVID-19;

  2. Employee’s health provider orders self-isolation due to concerns related to COVID-19;

  3. Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;

  4. Employee is caring for an individual subject to a quarantine/isolation order by the government or a health care provider;

  5. Employee is caring for a son or daughter whose school or place of care is closed, or whose child care provider is unavailable because of COVID-19; or

  6. Employee is experiencing any other “substantially similar condition” as specified by the Secretary of Health and Human Services, in consultation with the Secretary of Treasury and the Secretary of Labor.

The employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.


Full-time employees receive a total of 80 hours of paid sick leave. For part-time employees, their leave is calculated based on the equivalent number of hours they would work, on average, during a standard two-week period. For employees that have schedules that vary widely week to week their leave is calculated based on 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 such leave, including hours for which the employee took leave of any type.


If the employee did not work over such period, then leave would be based on the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.


Employees are to receive paid sick leave if they take it for reasons 1, 2, or 3 (as listed above) at their regular rate, except that in no event shall the total amount paid exceed $511 per day and $5,110 in total.


If an employee takes sick leave for reasons 4 through 6 (as listed above), then he/she shall receive paid sick leave at two-thirds (⅔) their regular rate with a cap of $200 per day and $2,000 total.


The paid sick leave does not roll over to the next year and terminates at the beginning of the employee’s next scheduled work shift immediately following the termination of the qualifying need and sick time. It does not appear that the sick leave would need to be paid out if the employee is terminated, but the act appears to be silent on that which leaves it open to interpretation.


Small businesses with fewer than 50 employees can be exempt from providing leave for reason 5 if the leave would result in expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity, employee’s absence would entail a substantial risk to the financial health or operationalvcapabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities; OR insufficient employees able, willing, and qualified at time and place needed to perform labor or services provided by the employee, and these labor or services are needed for business to operate at a minimal capacity.


Conclusion


It is important for employers to know that this leave is in ADDITION to any paid time off or paid sick leave currently provided by an employer, meaning that employers may not require employees to use other paid leave first. Employers must also POST A NOTICE that advises employees of their rights under the act, which can be found HERE. Please note that in PA only essential businesses are allowed to remain open.


The DOL has put out page with further guidance, FAQs, and webianr slides to help employers understand the requirements found: HERE. Employers can seek reimbursement for wages paid to employees taking emergency paid sick leave through tax credits applicable to the employer’s portion of certail payroll taxes. The IRS explains the tax credits: HERE.

Finally, this bill is set to sunset at the end of 2020, so unless extended, the FMLA and FLSA amendments will only be applicable this year.

DISCLAIMER: This blog is meant for informational purposes only and does not constitute specific legal advice or create an attorney-client relationship. Readers should discuss their specific situation with an attorney.

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