By Sara J. Ackermann and Mary Ellen Schill
March 17, 2020
Last night, March 16, the House amended versions of a COVID-19 Coronavirus bill we reported on yesterday. Again, this alert will focus only on the two provisions regarding paid leave for employees. The Senate is expected to review the bill and if President Trump signs it, these provisions will be effective in no later than fifteen days.
This alert breaks down the bill into two parts: Two-Week Paid Emergency Leave and FMLA Emergency Expansion Leave. As before, both leave provisions will end December 31, 2020, unless otherwise amended. Important exemptions to both of these leave provisions are as follows:
- The bill exempts health care providers and emergency responders. So, doctors, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers and physician assistants are not eligible.
- Businesses with fewer than 50 employees are exempt if they can show the requirements would “jeopardize the viability of the business as a going concern.” We hope to get regulations soon to explain what that means.
- These provisions do not apply to private employers with more than 500 employees. Generally, all public sector employers with few exceptions must comply. Contact legal counsel if you have questions regarding calculating your number of employees regarding this issue.
IMPORTANT NOTE: A MAJOR CHANGE IN THIS VERSION OF THE BILL ARE CAPS ON THE AMOUNT OF PAY FOR EACH TYPE OF LEAVE.
TWO-WEEK PAID EMERGENCY LEAVE
What is it? Covered employers must provide full-time employees eighty hours of paid leave, and provide part-time employees paid leave in the amount of hours they would normally work in a two-week period. This version of the bill limits the paid leave to $511 per day ($5,110 total) for an employee’s own leave, and $200 per day ($2,000 total) for leave to care for others or due to school closing.
What about someone we just hired? Yes, they get this paid leave.
What qualifies for leave? This version is different in that it limits the leave to an employee who is unable to work or telework because of following COVID-19 situations:
- Employee is subject to government quarantine, health care provider quarantine, or isolation order;
- Employee is experiencing symptoms waiting for diagnosis;
- Employee has to care for an individual in quarantine; or
- Employee has to care for employee’s son or daughter if school is closed or child care unavailable.
So, schools are closed in WI and other locations…does that mean all my employees with kids in school can take leave? This version of the bill, as with the FMLA expansion leave below, clearly states the employee must be able to establish he/she cannot work or telework due to the school closing.
What if we already have PTO? This leave is in addition to existing PTO or other paid leave. You cannot require an employee to use other paid leave first. However, unlike the previous version, this bill does not prevent an employer from modification of its existing policies. So, if you already implemented an emergency COVID-19 paid leave, it is our opinion you can modify that existing policy to conform with this new required leave so employees are not entitled to both.
EMERGENCY FMLA EXPANSION PAID LEAVE.
What is it? Covered employers must expand their FMLA policy to provide special leave for full and part-time employees. The first ten days is unpaid (employees can use accrued leave or the emergency leave above if they choose). Unlike normal FMLA leave which is unpaid, after the first ten days, the employer must commence paying the employee at two-thirds their regular pay. But unlike the prior bill, the pay is limited to no more than $200 per day and $10,000 in the aggregate.
We have less than fifty employees so we don’t offer FMLA. What do we need to do? You need to offer THIS particular FMLA leave, unless you can establish the requirements would jeopardize your business as we point out above.
How long does an employee have to work to be eligible? Thirty days
What qualifies for leave? This version is a substantial change from the previous version and limits the leave to an employee who is unable to work or telework because the employee has to care for a son or daughter if school is closed or child care unavailable.
We have more than 50 employee so we currently offer FMLA. Is this on TOP of the 12 weeks employees get now? No. This is part of the total 12 weeks of leave. Based on our interpretation of the law at this time, if an employee has already used all of his/her FMLA leave for something else (e.g. birth of child) then they do not have additional leave under this law.
WHAT ELSE DO WE NEED TO KNOW?
The bill as drafted provides limited refundable tax credits to employers who pay sick leave in accordance with these new provisions. In the event this bill is passed, we will update you with more specific details regarding tax, health and unemployment provisions. In the meantime, contact Ruder Ware legal counsel for questions about this pending legislation.
The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.
© 2020 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.