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: Coronavirus ("Covid-19")
CLARK BARS UPDATE - MARCH 23rd 2020
Law Offices of Scott M. Clark, PC
Date: March 23, 2020
IMPORTANT LEGAL UPDATE
Families First Coronavirus Response Act
By: Christopher R. Walker
On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act. The act included the Emergency Paid Sick Leave Act (hereinafter “Act”) and the Emergency Family and Medical Leave Expansion Act. The Families First Coronavirus Response Act was enacted to respond to employees needing to take time off from work due to COVID-19 as well as employees needing to take time off to care for family members affected by COVID-19 and the growing public health emergency.
The new laws take effect on April 2, 2020 are due to sunset on December 31, 2020. Below are the key points of the legislation and guidance as to how to comply.
1. Employers subject to Paid Sick Leave Act?
The Emergency Paid Sick Leave Act requires employers with fewer than 500 employees to provide paid sick leave to all employees; however, the United States Department of Labor has the ability to exempt businesses with fewer than fifty (50) employees and health care providers. 1099 workers and self-employed individuals get these benefits in the form of a tax credit.
2. What sick time benefits were changed?
Full-time employees must be provided with 80 hours of paid sick leave at their usual pay rate. Part-time employees are entitled to paid sick leave amounting to the average number of hours they work over a two-week period (Ex: Tom Smith worked 26 hours during the week of March 9, 2020 and 30 hours during the week of March 16, 2020. Tom Smith would be entitled to a total of 28 hours of paid sick leave under the Act. This leave is in addition to any mandatory sick leave otherwise required by law.
3. Under what circumstances may an employee use the sick time authorized by the Act?
Employees are entitled to use the leave authorized by the Act when they are unable to work (or telework) because of the following reasons:
• The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or is caring for an individual who is subject to such an order.
• The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 or is caring for an individual who has been advised to self-quarantine.
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• The employee is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19 precautions.
• The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
4. What pay is the employee entitled to when using the sick time authorized by the Act?
During the sick leave, the employer must generally pay employees their regular rate of pay (as defined by the Fair Labor Standards Act) or the applicable minimum wage. In Arizona, the minimum hourly wage is $12.00 as of January 1, 2020.
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5. Can the paid sick time under the Act carry over beyond December 31, 2020?
No. The new law provides that the sick time hours are not to be carried forward. The law is unclear as to whether or not the sick time guaranteed is to run 12 months from the date of its passage or through December 31, 2020. We expect future guidance from EEOC will be necessary to clear up this confusion.
6. Can an employer require an employee covered by the Act to use his or her previously accrued PTO or PST prior to using time allocated under the Act?
No. An employer cannot require an employee to use Paid Sick Time or Paid Time Off that accrued prior to the passage of the Act before the employee can draw on the paid sick time authorized by the Act. The employee is able to draw, immediately, on the paid sick time authorized by the Act as of April 2, 2020.
7. Can the employer require an employee to find someone to cover their shift?
Under the Act, and employer cannot require an employee to find a replacement to cover their shift during their paid sick time off period.
8. Are any employees exempt from the Act?
Under the law, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the paid sick leave requirement.
The Department of Labor also has the authority to issue regulations exempting employers with fewer than 50 employees from the sick leave requirement if that requirement would jeopardize the viability of the business.
9. Is there any notice that is required to be posted?
Yes. The Department of Labor should have a notice template available as of March 25, 2020. Once the notice is published, the employer should post a notice of the Act and its benefits in a conspicuous place in the workplace.
10. Can an employee take time off to care for their child due to a school closure?
Yes. Under the Emergency Family and Medical Leave Expansion Act also signed into law on March 18, 2020, an eligible employee may use up to 12 weeks of job-protected leave to care for their child under 18 years of age if their school or place of care has been closed, or their childcare provider is unavailable, due to a public health emergency. Leave taken in response to a public health emergency is being commonly referred to as “PHEL.”
11. Who is eligible for PHEL?
To be eligible for PHEL, an employee must:
1. Work for an employer with fewer than 500 employees.
2. Have worked for the employer for at least 30 calendar days prior to the leave.
12. What is the pay rate during PHEL?
The first 10 days of PHEL may be unpaid, but the employee may elect to substitute any accrued paid leave, including emergency paid sick leave, during this period. Employees are entitled to paid PHEL after the first 10 days, at a rate of no less than two-thirds their regular rate of pay, up to a maximum of $200 per day.
13. What are the job restoration rights for someone who took time off under PHEL?
At the end of PHEL, the employer must generally return the employee to the same or equivalent position. However, employers with fewer than 25 employees are exempt from this requirement if:
1. The employee's position doesn't exist after PHEL due to economic conditions or other changes in operating conditions that affect employment and were caused by a public health emergency during the period of leave;
2. The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held before the leave; and
3. The employer makes reasonable efforts to contact the employee if an equivalent position becomes available within the next year.
14. Are there exceptions to PHEL?
Yes. An employer of a healthcare provider or an emergency responder may elect to exclude the employee from the PHEL requirement.
It should be further noted that the U.S. Department of Labor also has the authority to issue regulations exempting employers with fewer than 50 employees where the requirements would jeopardize the viability of the business.
Any person who has questions about a proper protocol or who needs additional assistance is strongly encouraged to contact legal counsel at any time.
If you have questions about this information, please consult with an attorney