Family and Medical Leave in Light of the Coronavirus

As the world continues to address the daily updates and changes to daily life due to the coronavirus, the workplace has been deeply affected and many employers are left wondering how employment laws affect an employer’s ability to traverse this difficult terrain.

Family and Medical Leave Act:

In response to the Coronavirus ( i.e., SARS-CoV-2 or COVID-19), House Bill H.R. 6201 was passed by both the United States House of Representative and the United States Senate passed House Bill H.R. 6201, which was signed into law by the President of the United States. The Act takes effect April 1-December 31, 2020.

Provisions of great importance can be found in Division C, entitled, “Emergency Family and Medical Leave Expansion Act”, which temporarily, expands the provisions of the Family and Medical Leave Act (“FMLA”). Under the Emergency Family and Medical Leave Act, an employee is “eligible” for benefits of the Act if he has been employed for at least 30 calendar days by his employer. An “employer” is defined to include those employers with “fewer than 500 employees.”

“A qualified need related to a public health emergency” has been defined to include an employee who can not work (or telework) due to a need for leave due to care for a child under 18 years of age if:

a) The child’s school or place of care is closed or

b) The child’s ordinary care provider is unavailable due to public health emergency

In such an instance:

· The first 10 days of leave may be unpaid leave, but an employer may substitute the leave for vacation, sick leave, or personal leave for the initial 10 day period.

· The employer must compensate the employee at the rate of at least two of their regular rate of pay for the number of hours that he normally would be scheduled to work for the period on leave after the initial 10 days of unpaid leave.

A position need not be restored if an employer employs less than 25 employees AND

· The employee takes leave due to a public health emergency

· The position held by the employee no longer exist due to economic conditions or changes in operations caused by the public health emergency

· The employer makes reasonable efforts to restore the employee to an equivalent position; and

· Within a year after the public health emergency concluded, the employer makes reasonable efforts to contact the employee about an equivalent position that has become available.

Employers of healthcare providers and emergency responders may seek exclusion from these temporary provisions of the Act.

Division E of the Bill provides paid leave for certain absences. Private employers with fewer than 500 employees or public entities and agencies with more than 1 employee must provide their employees with up to 80 hours of leave, regardless of how long the employee has been employed with the employer for the following reasons:

· To self-isolate because the employee is diagnosed with the coronavirus

· To obtain a medical diagnosis

· To comply with recommendation or order of public official or health car provider where the presence of the employee can jeopardize the health of others

· To care for family who is self-isolating due to a diagnosis of coronavirus

· To care for the child of an employee if the school or place of care is closed due to the coronavirus

There are caps for the paid benefit leave depending on the basis for the leave: a) 100% for reasons related to the first three reasons above up to $500 daily and $5,110 total; b) 2/3 of regular rate of pay related to the fourth reason up to $200 daily and $2000 total; and c) up to ten weeks more of paid sick leave and expanded family and medical leave paid at 2/3 of regular rate of pay related to the fifth reason for up to $200 daily and $12,000 total.

An employer may not require an employer to find a replacement before going out on leave and employer may not require that an employee use other leave before using/receiving paid sick time.

Employers must also post a notice, which is being provided by the Secretary of Labor. It is anticipated that this notice will be finalized and available by March 27, 2020, before the April 1st, 2020, date in which Act takes effect.

Lindsay N. Greene is a Partner of DSK Law Group, with over 20 years of experience in Labor and Employment law. Should you have any further questions, we are available to assist.