Sick and Family Leave

Workers' Rights During COVID-19

Federal Legislation Regarding Sick Time


On March 18, 2020, President Trump signed Families First Coronavirus Response Act. This act requires that employers with less than 500 employees provide two weeks (10 workdays) of emergency paid sick leave. However, employers with less than 50 workers may opt out, with Department of Labor (DOL) approval, if the sick leave payments “would jeopardize the viability of the business as a going concern.” In other words, if the employer fears that paying the benefit would help drive it out of business, then it is exempt.

Sick leave is paid by the employer at the employee’s regular rate of pay (up to a limit of $511/day and $5110 in total) if the employee is ill with coronavirus; subject to a federal, state, or local quarantine order; or seeking a diagnosis or preventative care (i.e., self-quarantine) for coronavirus.

Sick leave is paid at 2/3 wage replacement, up to a limit of $200/day and $2,000 in total, to care for a family member who is ill with coronavirus, who has been quarantined, or who has sought a diagnosis or preventative care. Leave is paid at 2/3 wage replacement to care for a child whose school has closed or whose childcare provider is unavailable due to coronavirus.

Part-time workers or workers with irregular schedules are entitled to paid sick leave for the amount of hours that they typically work, based on the average number of hours the employee worked for the six months prior to taking the leave. However, part-time employees who have worked less than six months are to be paid based on the average number of hours the employee would normally be scheduled to work over a two-week (10 workday) period.

The paid sick time is in addition to any leave the employer provides employees, and employees cannot be required to use other leave benefits provided by the employer before using the emergency sick leave benefits.


Emergency FMLA, Paid Leave, Exclusions


The Families First Coronavirus Response Act also requires that employers with fewer than 500 employees, as well as government employers, pay their employees who cannot work or telework and who have been on the job for at least 30 days at 2/3 wage replacement (up to a cap of $200 per day, and $10,000 in total) to care for a child whose school or place of care has been closed, or whose child care provider is unavailable, due to coronavirus. This is part of the Emergency Family Medical Leave Act provisions. The statute is not clear whether intermittent leave is permitted for certain types of leave by statute, but it is likely the DOL will resolve this issue in its guidance or regulations.

Leave is limited to 12 weeks, minus any other FMLA leave taken by an employee during the employer’s FMLA year. The first 10 days are unpaid (so as not to duplicate paid sick leave). Employees may supplement the pay provisions of the leave with any paid leave they may have accrued if the employer and employee agree to this practice.

The Act states that the DOL can “issue regulations for good cause … to exclude certain health care providers and emergency responders.” Further, Section 3105 states, “An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of the provisions in the amendments made [in] this Act.” Clinical social workers are deemed to be health care providers, for this purpose. (See Footnote 1 below.) Additionally, the DOL has issued guidance that defines a “health care provider,” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave, as “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.” (DOL, Families First Coronavirus Response Act Questions and Answers. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. Further, the definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or maintain the operation of the facility.

“Emergency responders” have also been defined by the DOL’s guidance. For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. The provided list of employees included in the definition of “emergency responder” is quite broad and includes individuals who work for emergency responder facilities and whose work is necessary to maintain the operation of the facility. It is important to note, however, there is some legislation in Congress that would eliminate the exclusion of certain employees from the protections of the Act. (See Note 2, below.)

Job protection is also a key component of the Act. Similar to FMLA, an employer is required to return the employee to his/her position following the end of the leave. Employers with less than 25 employees are exempt from this requirement, but only if the employee’s position no longer exists due to economic or operating conditions due to the COVID-19 health emergency and the employer makes reasonable efforts to restore the employee to an equivalent position with equivalent pay, benefits, and employment terms/conditions for a one-year period following the end of the leave.

The employer can seek reimbursement via a tax credit equal to 100% of the qualified family leave wages they pay for each calendar quarter, up to a cap. The tax credit is allowed against the employer portion of Social Security taxes.


Footnotes


1. The FMLA defines the term “health care provider” as (A) A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; …or (B) Any other person determined by the Secretary to be capable of providing healthcare services.” The following are healthcare providers under subsection (B): doctors, podiatrists, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, and Christian Scientist practitioners.

2. One example is the PAID Leave Act, introduced by Senator Patty Murray of Washington, Senator Kirsten Gillibrand of New York, and Representative Rose De Lauro of Connecticut, that would provide “all employees and independent contractors” with 14 emergency paid sick days to be “reimbursed in full by the federal government.”

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