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Emergency Paid Sick Leave – Help Is On The Way

March 19, 2020 by Lincoln Derr

Help is on the way… but with some exceptions.

On Wednesday, March 18, 2020, the U.S. Senate officially passed a significantly altered version of the U.S. House of Representative’s Families First Coronavirus Response Act. President Donald Trump signed it into law several hours later which means the FFCRA goes into effect April 2, 2020.

While the Act contains several provisions which increase funding to aid programs like WIC and SNAP, two employment-related provisions – the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act – expand leave options available to employees and are perhaps the most anticipated changes to come with the Act.

Emergency Paid Sick Leave Act (“EPSLA”)

Under the EPSLA, employers with fewer than 500 employees must now provide fulltime employees with 80 hours of paid sick leave at the employee’s regular rate of pay up to $511 per day and $5,110 total per employee. Eligible employees may now take paid sick leave because the employee is:

1. Subject to a local, state, or federal COVID-19 related isolation or quarantine order;
2. Advised by a healthcare provider to self-quarantine due to COVID-19;
3. Experiencing COVID-19 symptoms and is seeking medical diagnosis;
4. Caring for a person (doesn’t have to be a family member) subject to a local, state, or federal COVID-19-related isolation or quarantine order or advised by a healthcare provider to self-quarantine due to COVID-19;
5. Caring for the employee’s child if the child’s school or daycare is closed or the child’s care provider is unavailable due to the COVID-19 public health emergency; or
6. Experiencing any other substantially similar condition specified by the Secretary of Health & Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

It’s important to note that employees taking leave for qualifying reasons 4, 5, and 6 above are only eligible to be paid two-thirds the employee’s regular pay rate up to $200 per day and $2,000 total to care for others.

The EPSLA comes with a number of exceptions – most significantly, employers who are healthcare providers or emergency responders may elect not to provide this benefit. Also, this paid sick leave benefit may be in addition to any paid sick leave currently provided by a particular employer and cannot be carried over into 2021.

The Act also prohibits retaliation against any employee taking leave under this new law and treats the failure to pay the required sick leave as a failure to pay minimum wage in violation of the Fair Labor Standards Act.

Emergency Family and Medical Leave Expansion Act (“EFMLEA”)

Just as the name indicates, EFMLEA temporarily expands the Family Medical Leave Act. For starters, the Act significantly changes the FMLA’s Covered Employer and Eligible Employee definitions. A Covered Employer is now one with more than 50 and fewer than 500 employees. As with the EPSLA, healthcare providers and emergency responders are exempt as are small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business.

An Eligible Employee need not have worked for the employer for at least one year and 1,250 hours. Instead, an employee must only have worked for the employer for at least 30 days prior to the designated leave.

As with the FMLA, an employee may take up to 12 weeks of job-protected leave. However, unlike the FMLA, the employee may only take leave under the Act if they’re unable to work or telework and need to care for the employee’s child (under 18 years of age) if the child’s school or daycare is closed or the child’s care provider is unavailable due to the COVID-19 public health emergency.

The first 10 days of leave under the EFMLEA may be unpaid, but the employee may, but is not required to substitute any accrued paid leave to cover some or all of the first 10 days. Beginning on the 11^th day, an employer must pay full-time employees at two-thirds the employee’s regular rate of pay (up to $200 per day and $10,000 in the aggregate) for the number of hours the employee would normally be scheduled to work.

Part-time employees must be paid based on the average number of hours worked over the preceding 6 months or, if the employee has worked less than 6 months, he or she is entitled to the average number of hours the employee reasonably expected to be scheduled to work at the time of hiring.

Employers with 25 or more employees must return any employee taking leave under the EFMLEA to the same position or an equivalent position. Employers with fewer than 25 employees do not have to return the employee to the same or equivalent position if the employee’s position no longer exists due to an economic downturn or other circumstances caused by the COVID-19 public health emergency. However, the employer must make reasonable attempts to return the employee to an equivalent position for up to one year following the employee’s leave.

Just like the EPSLA, the EFMLEA also provides guidance in a potential ligation down the road. It excludes civil damages against employers with fewer than 50 employees in any employee-initiated lawsuits related to the Act. One word of caution – the EMFLEA does NOT replace the FMLA or any state FMLA laws. Covered Employers under the FMLA should also analyze any leave requests under the FMLA and any applicable state leave laws as well.

Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act and will remain in effect until December 31, 2020.

Significant Changes to North Carolina Unemployment Benefits

On Tuesday, March 17, 2020, North Carolina Governor Roy Cooper issued an Executive Order closing the dining rooms and gathering areas of the state’s bars and restaurants. Take-out and delivery are still available, but there will be no dining in or bellying up to the bar here in the Tar Heel state for the foreseeable future.

Governor Cooper’s Order also expanded North Carolina’s unemployment eligibility and procedures. Just last week, the U.S. Department of Labor gave states the ability to amend their employment benefits laws to provide benefits for events related to the Coronavirus. Specifically, the USDOL confirmed that employees whose hours are reduced or cut entirely should be eligible for benefits and said that employees quarantined with the expectation of returning to work after the quarantine should also be eligible for unemployment benefits.

Historically, North Carolina has the most restrictive unemployment insurance system in the country. However, Governor Cooper’s Order significantly expands benefit opportunities with these 5 changes:

• Removes the one-week waiting period following termination to apply for unemployment;
• Removes the requirement that an applicant must look for another job while receiving benefits;
• Allows those employees laid off and those whose hours are significantly reduced to apply for unemployment benefits;
• Eliminates the in-person application process by allowing application by phone or online; and
• Removes employer responsibility for unemployment claims paid as a result of COVID-19-related claims.

Governor Cooper’s March 17^th Order applies not just to bars and restaurants, but to all North Carolina employers who have to lay off employees as a direct result of COVID-19. Applicants can call 888-737-0259 or go online to www.des.nc.gov.

This client alert provides an overview of a specific developing situation and is not intended to be, nor should be construed as legal advice for any particular fact situation. Lincoln Derr can help guide you through this unprecedented time.