COVID-19 Updates
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Families First Coronavirus Response Act

March 26, 2020

Employer Paid Leave Requirements

Immediate Action Required

With the rapid changes of the last few weeks, it is hard to keep track of what has been enacted into law and what is being discussed. The Families First Coronavirus Response Act (FCRA) is law and will apply to employers beginning April 1, 2020. It provides paid leave for employees who must stay home to care for themselves or their families—including leave for parents who need to care for children whose schools or day cares are closed-- during the COVID-19 pandemic. 

Effective date:  April 1, 2020 

Expiration date: December 31, 2020

The Act greatly expands coverage of the Family and Medical Leave Act (FMLA) where Covid-19 is involved EVEN FOR THOSE BUSINESSES THAT WERE NOT PREVIOUSLY REQUIRED TO COMPLY WITH FMLA. It has immediate consequences for employers. We can help.  

The Act creates two types of paid leave for employees who cannot work or telework: 

(1) up to two weeks of sick leave for an employee who is subject to quarantine or experiencing COVID-19 symptoms, is caring for someone who is quarantined or ill, or is caring for a child who cannot go to school; 

(2) and up to 12 weeks of partially paid FMLA leave for an employee to care for a child who cannot go to school or daycare because of COVID-19. 

Employers will be subsidized for the paid leave through tax credits and must prepare to implement the Act as soon as possible. 

Paid Sick Leave

Employee qualifies for paid sick time if the employee is unable to work or unable to telework due to a need for leave because the employee: 

  1. Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. Has been advised by a health care provider to self-quarantine related to COVID-19;
  3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. Is caring for an individual subject to an order described in 1) or self-quarantine as described in 2);
  5. Is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

FMLA Leave

Covered employer must provide to employees that it has employed for at least 30 days up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay 

  • where an employee is unable to work due to a bona fide need for leave to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19.
  • There are rules regarding calculating regular rate of pay which we can assist you with. 

FOR HOW LONG AND AT WHAT RATE DO YOU PAY EMPLYEES?

You need to know how to pay your employees based upon the type and reason for leave.  Some employees are entitled to two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay and some employees are entitled to paid sick leave at two-thirds the employee’s regular rate of pay. Some employees are entitled to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay 

 There are rules regarding calculating regular rate of pay which we can assist you withWe can assist with this complex analysis.

Who is Covered?

  • Certain public employers, and private employers with fewer than 500 employees. 
    • There are rules regarding which employees from what entities to count towards the 500 which we can assist you with.
    • Certain provisions may not apply to certain employers with fewer than 50 employees. FFCRA regulations are expected regarding this issue in April 2020  

NOTICE

There are posting notice requirements 

EMPLOYERS SUBJECT TO PENALTIES AND LIABILTY

Like other areas of the law, employers may not discriminate or retaliate.  The first two weeks of paid sick leave are subject to potential penalties like violating the Fair Labor Standards Act laws.   Employers in violation of provisions for providing up to 10 weeks paid leave for care of children due to closed schools or day care are subject to exposure similar the violating the FMLA laws.  

The Department of Labor has provided a 30-day compliance period but there are steps that must be taken to rely on this nonenforcement provision.

IF YOU NEED FURTHER ASSISTANCE CONTACT A HITE, FANNING & HONEYMAN L.L.P. LAWYER

Gaye Tibbets

316-269-0217

tibbets@hitefanning.com

Jon Newman

316-269-0214

newman@hitefanning.com

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