Coronavirus (COVID-19) Guidance to Employers
Update: The Families First Coronavirus Response Act has become law. See this discussion.
Employers around the world are reeling from the COVID-19 pandemic, and Lanier Ford's employment lawyers have already provided guidance to multiple employers to assist them in responding to this virtually unprecedented issue.
Lanier Ford's employment team is available to help employers who are considering potential options for their workforce and sites of employment. Working collaboratively with you, we are prepared to provide up-to-the-minute legal and practical advice on all pertinent topics, including OSHA reporting responsibilities, worker's compensation implications, leave guidance, disability accommodation concepts, avoidance of third-party infection liability, and Small Business Administration loan guidance.
We are also tracking updates on the Families First Coronavirus Response Act, which passed the House of Representatives late on Friday, March 13, 2020. The House bill is currently before the Senate, which is debating potential changes and amendments. In its current form, this new law would expand FMLA to a new group of employees and employers and would provide for paid leave for those who are experiencing coronavirus symptoms, diagnosed with the illness, or caring for certain individuals who are affected. Importantly, sections of the new law would require employers provide paid sick leave to care for a child if the child's school or daycare has closed due to COVID-19. These financial outlays are to be reimbursed to the employer through a series of tax credits.
The current text of the proposed law is available at from the website of the U.S. House of Representatives. Employers should bear in mind that details related to this new law may change at any time before enactment, and up-to-the-minute advice is critical.
The current House version of the bill provides two different types of paid leave to certain employees experiencing a need to care for themselves or others. These two different entitlements are broken down into two separate laws within the act: the Emergency Paid Sick Leave Act and the Emergency Family Medical Leave Expansion Act.
The Emergency Paid Sick Leave Act is the easiest to understand and will likely make the most immediate impact. In its current form, the Emergency Paid Sick Leave Act would require 80 hours of paid leave to full-time employees (or, for part-time workers, an amount equivalent to their average hours over a 2-week period) in the following defined situations:
(1) To self-isolate because the employee is diagnosed with coronavirus.
(2) To obtain a medical diagnosis or care if such employee is experiencing the symptoms of coronavirus.
(3) To comply with a recommendation or order by a public official with jurisdiction or a health care provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because of—
(A) the exposure of the employee to coronavirus; or
(B) exhibition of symptoms of coronavirus by the employee.
(4) To care for or assist a family member of the employee—
(i) is self-isolating because such family member has been diagnosed with coronavirus; or
(ii) is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care.
(B) with respect to whom a public official with jurisdiction or a health care provider makes a determination that the presence of the family member in the community would jeopardize the health of other individuals in the community because of—
(i) the exposure of such family member to the coronavirus; or
(ii) exhibition of symptoms of coronavirus by such family member.
(5) To care for the child of such employee if the school or place of care has been closed, or the child care provider of such child is unavailable, due to coronavirus.
Note that last provision with special caution: This new law would provide the equivalent of 2 weeks of full wages to any person who needs to care for their child due to the closure of a school or place of care. This will apply to a large percentage of Americans in the workforce. Moreover, the paid leave available under the circumstances above is in addition to any previous paid leave the employer granted to the employee, and the paid-leave entitlement under the law cannot be reduced for leave already given. Nor can an employer require exhaustion of accrued paid leave before the employee is entitled to the 2-week paid leave entitlement under this proposed law. Employees who take leave under this law are protected from retaliation and any employer who fails to provide the wages required will be guilty of a violation of the Fair Labor Standards Act (FLSA), which is enforced by the Secretary of the Department of Labor. FLSA violations include penalties such as double damages for willful violations.
In addition to the foregoing requirement of paid leave for 2 weeks, the House bill amends and significantly expands the federal Family Medical Leave Act of 1993 (FMLA) to provide an additional period of paid and unpaid leave for affected employees. This is the component of the bill referred to as the Emergency FMLA Expansion Act. As currently written, the expanded leave under the FMLA will be available in the following defined situations, which break down into three separate categories:
(1) To comply with a recommendation or order by a public official having jurisdiction or a health care provider on the basis that
(A) the physical presence of the employee on the job would jeopardize the health of others because of—
(i) the exposure of the employee to coronavirus; or
(ii) exhibition of symptoms of coronavirus by the employee; and
(B) the employee is unable to both perform the functions of the position of such employee and comply with such recommendation or order.
(2) To care for a family member of an eligible employee with respect to whom a public official having jurisdiction or a health care provider makes a determination that the presence of the family member in the community would jeopardize the health of other individuals in the community because of—
(A) the exposure of such family member to coronavirus; or
(B) exhibition of symptoms of coronavirus by such family member.
(3) To care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.
Under the House bill, the initial 14 days of leave for the above reasons will be unpaid. During this 14-day period of unpaid leave, employees are permitted to use any accrued leave if they have it and wish to use it, but cannot be forced to do so. Many employees may choose not to use up that accrued leave, because the law appears to permit them to use their 80 hours of paid leave under the Emergency Paid Sick Leave Act during that time period. Regardless of the employee’s election during the first 14 days, the Emergency FMLA Expansion Act provides for an additional 10 weeks of leave (for a collective total of 12 weeks). The additional 10 weeks of leave are to be paid as well, but only at two-thirds of the employee’s regular rate. The “regular rate” is computed in the same familiar fashion that employers must compute an employee’s regular rate for overtime purposes under the FLSA.
This Emergency FMLA Expansion Act is an amendment to, and expansion of, the federal Family Medical Leave Act (FMLA) of 1993. Although certain details remain unclear at this time, it is important for everyone to know that this law will likely apply to all employers with fewer than 500 employees. That’s a change from the FMLA, which only applies to employers with greater than 50 employees within 75 miles of a worksite. This means that if you previously were not covered by the FMLA, you still may be covered by this new law. In addition, the 12-months-of-service rule of the FMLA is suspended and the definition of “parent” is expanded to include domestic partners, parents in law, and step parents. The FMLA provisions now cover all employees who have worked for employers for just 30 days. But the Secretary of Labor has the authority to issue regulations to (a) exclude certain healthcare providers and emergency responders from the list of those employees eligible for leave and (b) to exempt small businesses with fewer than 50 employees where the imposition of these requirements would jeopardize the viability of the business. Just how any such authority could be used remains uncertain at this time.
The big takeaway from this huge piece of legislation is that between the Emergency Paid Sick Leave Act and the Emergency FMLA Expansion Act, many if not most employees in America will be entitled to 80 hours of paid leave, followed by an additional period of up to 10 weeks of additional partially paid leave (at two-thirds of regular wages).
As currently written, the Families First Coronavirus Response Act will reimburse private employers for this paid leave entitlement through a quarterly tax credit to employers. Because the reimbursement is a tax credit, the reimbursement will not be immediate. But because the credit comes in the form of a social security tax credit, employers will see the benefit of it in upcoming paychecks (through reduced payroll taxes) and will not have to wait until next year. Regardless, an initial financial outlay by small businesses appears likely as a result of this law. The news is worse for government employers. The House bill specifically states that federal, state, and local governments and agencies and instrumentalities thereof are not entitled to the tax credit, meaning there is no anticipated reimbursement for the mandated wages.
At Lanier Ford, we are on top of these rapid legal developments and stand ready to assist employers in all aspects of responding to this pandemic. We will continue to monitor for changes. Please check with your Lanier Ford lawyer for specific updates as this law works through the legislative process.