Legal Articles

Attorney Hugh J. CainEmployment Law Update: New Rules for Expanded Paid Sick Leave and FMLA for COVID-19

BY HUGH CAIN | HOPKINS & HUEBNER, P.C. | DES MOINES OFFICE

On Thursday, March 19, 2020, Congress passed 2 laws to extend paid leave to employees working for employers with less than 500 employees.  They go into effect on April 1 and expire on December 31, 2020.   There is currently no small employer exception, though the Department of Labor is given authority to adopt exceptions for employers with less than 50 employees.  The first new law is federally required sick leave for 2 weeks and the second is for FMLA expansion to provide paid leave.  The intent was for both provisions to work together to provide for some paid leave up to 12 weeks.  

Paid Sick Leave

This paid sick leave is in addition to any current leave that you are providing now.  You cannot make the employee take the currently available employer provided leave first.  It applies to any employee even if they just started yesterday.  There are 6 conditions when  this law applies: 

  • The employee is subject to quarantine order;
  • A health care provider has advised the employee to self-quarantine;
  • The employee experiences symptoms of COVID-19 and is seeking medical diagnosis;
  • The employee is caring for someone who has been advised or ordered to quarantine;
  • The employee is caring for son-daughter whose school has closed or childcare provider has become unavailable due to COVID-19;
  • The employee is experiencing other substantially similar condition specified by Secretary of Health and Human Services.  

The dollar amount of paid sick time depends upon whether you are taking the leave for conditions 1-3 or 4-6.  If conditions 1-3 apply, then you pay sick leave at the employee’s regular rate, but it is capped at $511/day or $5110 aggregate.  If conditions 4-6 apply, then the employer pays sick time at a rate of 2/3s of regular rate pay with a cap of $200/day or $2000 aggregate. In conditions 1-3, if the employee earns $10 an hour and works 8 hours per day, then you pay $80 per day. In conditions 1-3, if the employee makes $100 an hour and works 8 hour days, then the caps come into play - the employee is capped at $511 per day. If the employee takes leave for conditions 4-6 and she makes $10 an hour and works 8 hours a day, then the amount of sick leave is $53.29 (2/3s of $80).   If conditions 4-6 apply and the employee makes $100 an hour for 8 hours, then the cap of $200 a day applies.  There are provisions for part-time employees at a proportion to full time employment. 

FMLA Expansion

Unlike the prior version of the FMLA, this applies to all employers under 500 employees, not simply those with more than 50 employees.  An employee can take 12 weeks of FMLA leave for these reasons: 

a) Care for son or daughter under 18 whose school or care place closed; 
b) Childcare provider is unavailable; 
c) Because of emergency declared by state, federal, or local government.  
These are the only reasons where paid leave comes into play. 

This leave is paid, again unlike the prior version of the FMLA. The employer pays as follows:  

a) For the first 10 days employer pays $0. 
b) Thereafter, employer pays not less than 2/3s of the employee’s regular rate and the number of hours normally scheduled to work but capped at $200 a day or $10,000 in aggregate.  

Any employee who has worked for you for 30 days is eligible for this FMLA expansion.

The law takes effect on April 1, 2020.  It expires on Dec. 31, 2020.  There are tax credits which assist the employer to pay for these benefits. There are penalties for non-compliance and for retaliation.  Please use the link provided below to download the updated Families First Coronavirus Response Act (FFCRA) poster.

https://www.dol.gov/agencies/whd/posters