How the new FMLA and Paid Sick Time Law Will Impact You

Robinson & Henry is dedicated to helping employers and employees through this turbulent time of COVID-19 and looming economic crisis. Our 30 attorneys have experience helping employers and employees in times of great upheaval. If you are a business or employee and need assistance, our attorneys are ready to help. Call us at (303) 688-0944.

Update March 14, 2020: The following information is based on H.R. 6201, which has passed the House of Representatives, but is not law, and is therefore preliminary. A bill does not become law until a majority of Senators votes and passes the bill. Once the bill passes both houses, the President has 10 days to veto or sign the bill into law. Therefore, it is important to recognize that this is not the law. This information is provide for employers and employees for their potential rights and responsibilities.

H.R. 6201, FAMILIES FIRST CORONAVIRUS RESPONSE ACT:
Full Text: https://docs.house.gov/billsthisweek/20200309/BILLS-116hr6201-SUS.pdf
Summary: https://appropriations.house.gov/sites/democrats.appropriations.house.gov/files/Families%20First%20Summary%20FINAL.pdf

Summary:
H.R. 6201, the Families First Coronavirus Response Act, takes emergency action during the Coronavirus (COVID-19) epidemic to provide both family medical leave as well as paid sick time for individuals and families that need to care for infected family members or children whose daycare or school has closed. Employers with fewer than 500 employees are required to pay for this time off.  The two acts together allow eligible employees paid sick time for two weeks at full pay and two more weeks pay at two-thirds pay. Employers are entitled to a reimbursement through a tax credit which, depending on the amount of compensation paid to the employee, may equal all or a portion of the pay.

Item	Current FMLA Law	Emergency Law	Law
Eligible Employee	Employed for 12 months and worked for 1,250 hours	Employed for 30 days	Sec. 110(a)(1)(B)
Employer Threshold	Employed 50 or more employees for each working day during 20 or more weeks during 2019	Any employer with less than 500 employees	Sec. 110(a)(1)(B)
Parent	A parent was a biological parent, or a parent that was in charge of the day-to-day care or financially support an employee	A parent that was a biological, adoptive, foster, step-parent, parent-in-law, legal guardian, or a person that was in charge of the day-to-day care or financially support an employee	Sec. 110(a)(1)(C)
Leave if an employee tests positive for Coronavirus or has symptoms of the Coronavirus	None	A health care provider must determine that the employee would jeopardize the health of others and that employee can't do their job	Sec. 110(a)(2)(A)(i)
Leave if an employee's family member tests positive for Coronavirus or has symptoms of the Coronavirus	None	A health care provider must determine that the family member would jeopardize the health of others, and that employee can't do their job	Sec. 110(a)(2)(A)(ii)
Leave due to school closure and lack of child care provider	None	If an employee has a child under the age of 18 and their school closes or the child's care provider is unavailable	Sec. 110(a)(2)(A)(iii)
Family Member	Employee's spouse, son, daughter or parent	Employee's parent, son or daughter under the age of 18, or spouse, as well as an employee's son or daughter, senior citizen, or next of kin of any age that is any of the following: pregnant, a senior citizen, a grandparent, a grandchild, or an individual who has functional impairment.	Sec. 110(a)(2)(F)
Effective Date	currently effective	Effective 15 days after the date of enactment	Sec. 3105

Updates to the Family Medical Leave Act

The Emergency Family and Medical Leave Act (“Emergency Law”) is effective 15 days from the date the bill is signed into law until December 31, 2020.  The following relates to Public Health Emergency Leave only. The existing FMLA law is not changed.

Eligible Employees

Under the prior version of the Family Medical Leave Act, employers were required to provide certain benefits to employees after the employee works for a period of 12 months and 1,250. Under the Emergency Act, for leave related to the coronavirus, an eligible employee is one that works for 30 days.  It does not matter how many hours the employee worked.  Further, once the employee has worked for 30 days, then the employee becomes eligible.

Eligible Employers

An eligible employer is any employer that has less than 500 employees. Under existing FMLA law, an eligible employer is one that had more than 50 employees during 20 weeks of the prior year.

Because there is no minimum amount of work required, the total number of employees for employers is greater than existing FMLA law. Because the burden on employers and the rights of employees are greatly enhanced once the total number of employees exceeds 25 and then again at 50, the change greatly expands the benefits of employees and the obligations of employers.

Who is a Parent?

Under existing law, a parent of an employee was only a biological parent or a person that stood in loco parentis, which is a person that was in charge of the day-to-day care or financially support an employee when they were a child.  Under the emergency Act, that definition has been greatly expanded. A parent now includes a biological, foster, adoptive, step-parent, parent-in-law, parent of a domestic partner, legal guardian, or a person that stood in loco parentis.

The effect of the change means that employees are entitled to FMLA leave to care for more people than before for leave related to the coronavirus. Because of the change to eligible employers, more employers are now required to provided (and pay for) that leave.

Employee’s Qualify Need

Under the Emergency Law, an employee is entitled to leave if the employee can demonstrate (1) a qualifying need and (2) that there is a public health emergency related to COVID-19.  Both the federal government and most states have declared a state of emergency related to the Coronavirus.

Qualifying Need:

(1)  A government official or health care provider determines that (A) the employee’s presence on the job would jeopardize the health of others due to symptoms of the coronavirus (COVID-19) or because the employee was exposed to the coronavirus, and (B) the employee is unable to perform the functions of the position and comply with the order;

(2) To care for a family member where a health care provider or government official has determined that the presence of the family member in the community would jeopardize the health of others in the community because of the exposure to the COVID-19 or symptoms of the coronavirus; or

(3) To care for a child of employee under the age of 18 if a school or place of care has been closed due to a public health emergency or the child care provider is unavailable for a public health emergency.

Analysis

To understand who may qualify, let’s break down three scenarios:

An Employee with Symptoms or a Diagnosis

If an employee has symptoms, which include a fever, cough, and shortness of breath (see the CDC website for more details) and a doctor states that they are a hazard to the workplace, then the employee is entitled to leave if the employee cannot otherwise perform their functions.  That means that if your employee can work from home and do their job, then they do not qualify.

An Employee with A Family Member with Symptoms or A Diagnosis of the Corona Virus

If an employee’s family member’s health care provider determines that they are infected with COVID-19 or exhibiting symptoms, then that employee is entitled to leave if they can’t perform their job.  If the employee can work from home and can fulfill the duties of their position, then they are not entitled to leave.

Who is a family member? A family member is broadly defined under the law and includes a parent, son or daughter under the age of 18, a spouse. It also includes, with respect to an employee, a son or daughter, senior citizen, or next of kin of any age that is also any of the following: pregnant, a senior citizen, a grandparent, a grandchild, or an individual who has functional impairment.

An Employee with Children

When an employee has children, they are allowed leave regardless if they or a loved one has been infected with COVID-19 when the child’s school or care provider (someone who is paid for taking care of the employee’s child) is unavailable during a public health emergency.  That means that leave must be allowed not only for public school closings, but also if babysitting or the child’s usual care arrangement is not available.

Small Businesses Under 50 Employees

Currently all employers are subject to the Emergency Laws, however, the Department of Labor may make additional laws to exempt small businesses with fewer than 50 employees when the imposition of the requirements would jeopardize the viability of the business as a going concern.  Only time will tell what rules the Department of Labor will enact and how the viability of a small business will be determined.

An Employee’s Right to Pay under the Emergency Family and Medical Leave Expansion Act

If the employee qualifies, then the first 14 days may consist of unpaid leave, unless the employee elects to use any accumulated vacation,
personal leave, medical, or sick time (PTO). An employer cannot force the employee to use their PTO, however.  The employee is required, if possible, to notify the employee.

Once the 14 day period expires, then an employer must pay the employee sick leave for an additional 14 days.  The amount of paid leave can’t be less than 2/3rds of the regular pay of the employee for the hours that the employee would otherwise be scheduled to work.

For employees with variable schedules, the employer must calculate the amount of pay as follows:  The average number of hours that the employee was scheduled to work / the six month period ending on the date that the employee takes the leave.

Note that it is not the number of hours that the employee actually worked, but instead the number of hours that the employee was scheduled to work. That means that an employee’s vacation or sick time does not reduce the total amount that they must be paid.

An employee’s right to a job after leave

If the employer has over 25 employees, an employee has a right to a position after they return from leave.  The right of the employee is the same as under current law, namely the right to the same position or a position with an equivalent level of pay, compensation, and benefits.

Question	Answer	Law
When does an employee who qualifies under the new law have a right to get paid?	14 days after an employee takes leave	Sec. 110(b)(1)(A)
Does an employer have to pay an employee?	Yes. After 14 days, an employer with less than 500 employees must pay their employee sick leave for up to 3 months	Sec. 110(b)(2)(A)
How much does an employer have to pay an employee?	2/3rds of the employee's regular rate of pay based on the hours the employee would normally be scheduled to work	Sec. 110(b)(2)(B)
How do I calculate pay when my employee does not work the same hours	Employers can average the number of hours a employee would normally be scheduled to work over the last six months	Sec. 110(b)(2)(B)
What if my employee worked for me less than 6 months?	Then the employer should use the expected hours at the time of hiring	Sec. 110(b)(2)(B)
Do I have to give the employee a job after the leave?	Yes, with the exception of employers with less than 25 employees in certain cases.	Sec. 110(d)(2)

If the employer has less than 25 employees, then the employee has no right to a position if that position was eliminated because of either (1) economic conditions or (2) changes in the operating conditions of the employer that are caused by the coronavirus and affect the employer.

To take advantage of this section, the employer must make reasonable efforts to restore the employee to a similar position (benefits, pay, and other terms of condition of employment). If those reasonable efforts fail, however, the employer must still contact the employee and offer them the position if a similar position does become available. The period that the employer must offer the position to the employee is the sooner of 1 year after the need for leave ends, or 1 year and 12 weeks after the leave commences.

If you are an employer or employee, contact us at (303) 688-0944 to discuss your rights and obligations.