March 24, 2020 UPDATED
I originally sent out a Memorandum to Municipal Clients Regarding H.R. 6201 on Friday, March 20, 2020. There have been updates and I want to give you a more concise, easy to understand updated Memo.
This Memo will address both paid leave areas that were addressed in the first Memo, but there were updates that the Senate changed before the final passage.
Term of the Law
Originally it was thought that this law would be retroactive, meaning it would go back and start for any time taken off by employees from March 18, 2020 to current. However, that is NOT the case. The law will not be in effect until April 2, 2020 and will be in effect until December 31, 2020.
In this Memo we will address the two-employee related leave changes in the new law. The Emergency Paid Sick Leave Act and The Emergency FMLA.
1. Emergency Paid Sick Leave Act
The law splits the eligible employees into six different categories. An employee is eligible if an employee falls in one of the six categories and it will matter which of the six an employee qualifies for to determine what amount they will be paid.
The six categories are:
- Employee is subject to government quarantine or isolation order;
- Employee has been advised by a healthcare provider to self-quarantine;
- Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- Employee is caring for an individual who is the object to 1. or 2. on the list above;
- Employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions;
- Employee is experiencing substantially similar to conditions as specified by the Secretary of Health and Human Services.
Full time employees are entitled to 80 hours of pay. Part time employees are entitled to an amount of leave up to the average number of hours they work in a two-week period going back 6 months.
Under this Act, it does not matter how long the person has been an employee to qualify.
- Amount paid
- Employees under categories 1. 2. or 3. above:If the Employee qualifies under 1., 2. or 3. above, then they will be paid no less than the employees’ regular rate of pay. Hourly rate will apply for hourly employees. Salary employees will be broken down into hourly rate unless you know what the employee gets paid for a two-week period.The payment is capped at no more than $511 per day or a total payout over the two weeks at $5,110. The employer is not obligated to pay more than stated here. Many will fall under this.
- Employees under categories 4. 5. or 6. above:If the Employee qualifies under 4., 5. or 6. above, then they will be paid no less than the two-thirds (2/3) the employees’ regular rate of pay. Hourly rate will apply for hourly employees. Salary employees will be broken down into hourly rate unless you know what the employee gets paid for a two-week period.The payment is capped at no more than $200 per day or a total payout over the two weeks at $2,000. The employer is not obligated to pay more than stated here.
- Notice Requirements
The question was raised what happens if I want to require notice of the employee to prove they qualify under one of the six above. My recommendation is that under 1. You cannot ask for a notice. This is because everyone is currently under this order if you are not an essential worker. For 2., 3. and 4., it is reasonable for the employer to ask for some documentation. The law states that reasonable notice practices will be followed. So, it may take some time to get this notice, but you can ask for the notice. For 5., we all know the schools are closed so I don’t think a notice will help here unless they are having help at home to assist with the childcare. For 6. Nobody really understands what this means so we will not address.
The law comes with a thirty (30) day non-enforcement clause. This means you cannot be sued for thirty (30) days. This does not mean that you get a “get out of jail free” card. Try as hard as you can to follow the law and I will be here to assist.
- Using Other Time First
The employer cannot require an employee to use other paid time off before this time off. The law is clear that the employees are entitled to use this time established under the Act first.
***It is important to note that people who stay home out of fear or who self-quarantine without one of the six (6) requirements above will not qualify under this Act.
2. Emergency Family and Medical Leave Expansion Act
There are twelve (12) weeks available, but this is not twelve (12) additional weeks, it is twelve total weeks. Not much changed here. The first ten (10) days can be unpaid but the remained of the time paid like the 4-6. above.
The Employee will be paid no less than the two-thirds (2/3) the employees’ regular rate of pay. Hourly rate will apply for hourly employees and for salary it will be broken down into hourly rate unless you know what the employee gets paid for a two-week period.
The payment is capped at no more than $200 per day or a total payout over the two weeks at $2,000. The employer is not obligated to pay more than stated here.
There are some groups of exceptions to having employees back if you have less than 25 employees. If those apply, we will discuss.
There will be reimbursement, but it will be against payroll tax credits. It will be the amount equal to the payout obligation and if you meet a situation where that is not enough to make you whole, the government is saying they will write you a check as a refund. More on this to come from the Department of Labor.
I wanted to get you the changes right away. I will give more guidance as soon as it becomes available. But here are the law changes as they stand now.
Wood Law Firm, LLC
Benjamin R. Wood