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  • Writer's pictureJillian K. Farrar

COVID-19 Response: Feds to Require Employers Provide Paid Sick Leave & Family Medical Leave

Updated: Mar 27, 2020

In the early hours of Saturday morning the House of Representatives passed an emergency spending bill supported by President Trump addressing the health and economic crisis brought on by the novel coronavirus, COVID-19. While the legislation includes a myriad of provisions designed to lessen the public health and economic consequences of the pandemic, the proposed statute includes significant requirements for employers.

Essentially, employers with fewer than 500 employees will be required to provide employees with paid sick leave and family medical leave at no less than two-thirds (2/3) pay for twelve weeks for COVID-19 related reasons.

The Senate is expected to pass the bill early this week.[1] These provisions, if passed by the Senate and signed by President Trump will take effect no later than 15 days after enactment.

Emergency Family and Medical Leave Expansion Act:

Employers with fewer than 500 employees must provide 12 weeks of job-protected leave under the Family Medical Leave Act (FMLA) to employees who have been on the employer’s payroll for 30 days for the following reasons:

• The employee has a current COVID-19 diagnosis;

• The employee is under quarantine (including self-imposed quarantine) at the instruction of a health care provider, employer, or a local, State, or Federal official in order to prevent the spread of COVID-19;

• The employee is providing care for an individual who has a current diagnosis of COVID-19 or who is under quarantine; or

• The employee is caring for a child or other individual unable to provide self-care due to a COVID-19 related closing of a school or other care facility or care program.

The first fourteen days of emergency FMLA may be unpaid; however, an employee may use accrued vacation, personal or other medical or sick leave (though an employer may not require an employee to do so) during this period. After the two weeks of unpaid leave, employers must pay emergency FMLA leave at a rate of no less than two-thirds (2/3) of the employee’s usual pay rate.

The Secretary of Labor may issue regulations to exempt small businesses with fewer than 50 employees where the imposition of these requirements would jeopardize the viability of the business. Exclusions may also be applied to health care providers and emergency responders.

An employee who takes this leave must be returned to the same or equivalent position upon their return to work. Employers with fewer than 25 employees may be subject to an exception if the employee’s position no longer exists after the FMLA leave due to an economic downturn or other conditions prompted by a public health emergency.

Paid Sick Days for Public Health Emergencies and Personal Family Care:

Employers with fewer than 500 employees must provide employees with two weeks of paid sick leave. If the employee is quarantined, diagnosed with or seeks a diagnosis or preventive care for COVID-19, the employer must pay the employee’s full rate of pay. Employees using sick leave to care for a family member or child whose school or childcare provider has closed due to coronavirus must be paid at a rate of not less than two-thirds (2/3) of the employee’s regular rate.

Full-time employees are entitled to 80 hours of leave and part-time employees are guaranteed their typical number of hours in a two-week period.

Paid sick time does not carry over from previous years and the requirements of paid sick leave will expire on December 31, 2020.

Tax Credits for Emergency Paid Sick Leave And Family And Medical Leave:

The legislation passed by the House of Representatives provides employers with a series of refundable tax credits to offset the costs of providing paid emergency sick leave and paid FMLA. Employers are entitled to a refundable tax credit equal to 100% of the qualified paid sick leave wages paid by the employer pursuant to the Emergency Paid Sick Leave Act and the qualified family leave wages required to be paid under the Emergency Family and Medical Leave Expansion Act. The tax credits will be allowed against the employer portion of Social Security taxes.

As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

You can view more COVID-19-related posts in our COVID-19 Resource Area here.

[1] It is important to note that the Senate could make significant changes to this legislation when it takes up its version of the bill. This article is based on information available as of publication.

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