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CLARK BARS UPDATE - APRIL 3RD 2020

Law Offices of Scott M. Clark, PC
Date: April 3, 2020

COVID-19: NEW PAID LEAVE AND FMLA RULES
By: Judy Drickey-Prohow

On April 1, 2020 the United States Department of Labor authorized new rules regarding coverage and other requirements under the Emergency Family and Medical Leave Act as it pertains to the new provisions relating to COVID-19.

These rules will be officially published on Monday, April 6, 2020, but are currently available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-07237.pdf. These rules apply to all employers with fewer than 500 employees and will be in effect from April 2, 2020 through December 31, 2020.

Under these rules, all "employees" are entitled to paid leave under the circumstances identified below. For purposes of these rules, the term "employee" means anyone identified as an employee under the Fair Labor Standards Act.

"Eligible employees" may be entitled to additional benefits. An "eligible employee" is an employee who has been employed for at least thirty (30) days by the employer.

Note: The definition of "eligible employee" is different than the definition that the Family and Medical Leave Act ("FMLA") uses for non-COVID-19 situations.


Paid Leave Entitlements

Employers are required to provide to each of their employees paid sick leave to the extent that the employee is unable to work for any of the following reasons:
- The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis from a health care provider.
- The employee is caring for an individual who is subject to any of the above situations.
- The employee is caring for his/her son or daughter whose school or place of care has been closed for a period of time, because of (a) an order of a state or local official or (b) a decision of the school or place of care for reasons relating to COVID-19.
- The employee has a substantially similar condition as those above, if those conditions are later identified during the pendency of these rules.

Note re: "Quarantine": For purposes of these rules an employee is subject to a "quarantine or isolation order" when the employee is subject to a quarantine, isolation, shelter-in-place, or stay-at home order issued by any federal, state or local government that causes the employee to be unable to work even though the employer has work that the employee could perform but for that order.

The reference to "quarantine or isolation order" also includes situations when a state, federal or local government has advised certain categories of citizens, such as those of a certain age or of certain medical conditions, to shelter in place causing those categories of employees to be unable to work even though the employer has work for them.

An employee who is subject to a quarantine or isolation order may take paid sick leave only if he or she would otherwise be able to perform work that is allowed or permitted by his or her employer either at the workplace or by telework. An employee subject to a quarantine or isolation order may not take paid sick leave where the employer does not have work for the employee as a result of the order or other circumstances.

Note re: School or Childcare Provider: The term "childcare provider" refers to (a) a provider who receives compensation for providing child care services on a regular basis, and (b) family members and friends who regularly care for the employee’s child even if no compensation is provided for the care.

School refers to an elementary or secondary school.

This leave is required only if no other suitable person is available to care for the son or daughter during the period of such leave. An employee caring for his/her son or daughter may not take paid sick leave where (a) the employer does not have work for the employee, or (b) another suitable person is available to care for the son or daughter during the period of such leave

Note: re: Seeking Medical Diagnosis for COVID-19: This means that a person may take paid sick leave if the employee is experiencing any of the following symptoms: (a) fever; (b) dry cough; (c) shortness of breath; or (d) any other COVID-19 symptoms identified by the Centers for Disease Control ("CDC").

Any sick leave taken for this reason is limited to time the period of time the employee is unable to work because the employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment to be tested for COVID-19.

Note re: Caring for an Individual: This refers to situations when the employee is caring for (a) an immediate family member, (b) a person who regularly resides in the employee’s home or (c) a similar person with whom the employee has a relationship that creates an expectation that the employee wouldd care for the person if he or she were quarantined or self quarantined. It does not include a person with whom the employee has no personal relationship.

An employee may take leave for this reason only if the employee would be able to wok either at the employer’s workplace or remotely but for the need to care for such an individual AND if the individual being cared for (a) is subject to a quarantine or isolation order; (b) has been advised to self-quarantine because of a belief that the person (1) may have COVID-19 due to known exposure or symptoms; (2) has COVID-19; or (3) is particularly vulnerable to COVID-19.
Amount of Paid Sick Leave

- Full time Employees: A full time employee is entitled to up to eighty (80) hours of paid sick leave. For purposes of this provision a full time employee is an employee who is scheduled to work at least forty (40) hours each work week.

For employees without a normal weekly schedule, an employee is considered to be a full time employee if the average number of hours per work week that the employee was scheduled for work, including hours in which he employee took leave of any type, is at least 40 hour per work week over a period of time that is the lesser of (a) the six month period ending on the date on which the employee takes paid sick leave; or (b) the entire period of the employee’s employment.

- Part time Employees: If a part time employee has a normal weekly schedule the employee is entitled to up to the number of hours of paid sick leave that the employee is normally scheduled to work over two work weeks.
- If the employee does not have a regular schedule but the employee has been employed for at least six months the number of hours of paid sick leave calculated by looking at the number of hours equal to fourteen times the average number of hours that the employee was scheduled to work, including days when the employee took leave of any type, over the six month period prior to taking this leave.

- If the employee has been employed for fewer than six months, the employee is entitled to up to the number of hours of paid sick leave equal to fourteen times the number of hours that the employee and employer agreed to at the time of hire. If there is no such agreement the employee is entitled to up to the number of hours of paid sick leave equal to fourteen times the average number of hours per calendar day that the employee was scheduled to work over the entire period of employment, including days when the employee took leave of any type.
Amount of Pay for Paid Sick Leave

Sick Leave for Employee Illness, Quarantine or Exposure: For each hour of paid sick leave taken because (1) the employee is subject to federal, state or local quarantine or isolation order, or (2) the employee has been advised b a health care provider to self quarantine; or (3) the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis from a health care provider, the employer shall pay the higher of
- The employee’s average regular rate of pay
- The federal minimum wage or
- Any state or local minimum wage to which the employee is entitled.

Sick leave taken for this reason is capped out at $511.00 per day or $5110 in the aggregate.

Sick Leave Taken for Caring for Others: For each hour of sick leave taken because the employee is caring for an individual who (1) has been diagnosed with COVID-19, or (2) has been advised to self-quarantine, or (3) is experiencing symptoms of COVID-19, the employer must pay the employee the greater of two thirds of his/her regular rate of pay or the state or local minimum wage to which the employee is entitled.

For each hour of sick leave taken because the employee is caring for a son or daughter for COVID-19 related reasons, the employer must pay the employee two thirds of his/her regular rate of pay or the state or local minimum wage to which the employee is entitled, whichever is greater.

Sick leave taken for these reasons is capped out at $200.00 per day and $2000.00 in the aggregate.

An employee may not take paid sick leave intermittently unless the employee is taking it to care for a son or daughter whose school or child care arrangements are closed for COVID-19 related reasons.
Expanded Paid Leave Entitlements (Expanded FMLA)

Eligibility: An eligible employee may take expanded FMLA leave because he or she is unable to work due to a need to care for a son or daughter whose school or place of care has been closed or whose child care provider is unavailable for reasons related to COVID-19.

The eligible employee may take this expanded leave only if there is no suitable person available to care for his/her son or daughter during the period of such leave.

Eligible employees are entitled to expanded FMLA leave. The term "eligible employee" refers to an employee who is employed by an employer for at least thirty (30) calendar days if:
- The person was on the employer’s payroll for the thirty (30) days immediately prior to the date that the employee’s leave would begin; or
- The employee was laid off or otherwise terminated by the employer on or after March 1, 2020 and rehired or otherwise reemployed by the employer on or before December 31, 2020, provided that the employee had been on the employer’s payroll for thirty (30) or more of the sixty (60) calendar days prior to he date the employee was laid off or terminated.

An employee who meets these requirements is eligible for expanded FMLA to care for a son or daughter whose school or child care is closed for COVID-19-related reasons even if the employee would not otherwise be eligible for regular FMLA.

Exceptions: If the employee has already taken some FMLA leave due to the birth or adoption of a child or because of a serious illness of a family member during the FMLA qualifying year, the eligible employee may take up to the remaining portion of the twelve (12) work week expanded FMLA. If the employee has already taken the full twelve (12) weeks of FMLA during the qualifying year, the eligible employee may not take expanded FMLA leave but may still take up to two (2) weeks of paid sick leave.

An eligible employee may take a maximum of twelve (12) work weeks of expanded FMLA leave between April 2, 2020 and December 31, 2020 even if that period spans two FMLA twelve-month periods.

Compensation: If the employee takes paid sick leave for reasons other than caring for a son or daughter, then the employee’s paid sick leave and expanded FMLA leave run concurrently. In this situation the first two weeks would be paid as paid sick leave and the remaining ten (10) weeks are paid as expanded FMLA leave.

The payment requirement under the expanded FMLA is triggered two weeks after an employee takes paid sick leave for any reason. For each day of expanded FMLA leave after the initial two-week period the employer must pay the employee two-thirds of the employee’s regular rate of pay up to a maximum of $200 per day or $10,000 in the aggregate

An eligible employee may elect, or an employer may require, the employee to substitute any of his/her accrued paid vacation leave, personal leave, or family leave for any part of the 12-week period of expanded FMLA leave. Any leave that an eligible employee elects to use or that an employer requires the eligible employee to use would run concurrently with the expanded FMLA leave.

After the initial two weeks of expanded FMLA leave the employer must pay the eligible employee two-thirds of the eligible employee’s average regular rate for each day of leave taken; however, in no event is the employer required to pay more than $200.00 per day and $10,000.00 in aggregate per eligible employee when an eligible employee takes expanded FMLA leave for up to ten weeks after the initial two week period of unpaid expanded FMLA leave. The amount of pay for expanded FMLA leave may be calculated either in full day or in hourly increments.
Other Information

Employers with fewer than fifty (50) employees may be exempt from both the paid sick leave and expanded FMLA requirements if imposing these requirements would jeopardize the viability of the business as a going concern.

Notices

Effective April 1, 2020 every employer covered by the paid leave provisions is required to post and keep posted a notice explaining the paid leave provisions and providing information concerning the procedures for filing complaints with the Wage and Hour Division. An approved poster with the notice requirements is available for download at https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

This notice does not require translation to languages other than English.

Additional notices to employees are required when the employee takes or seeks to take sick leave or expanded FMLA leave

Anyone with questions about these issues is encouraged to contact legal counsel at any time.

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.



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