As I am sure you are all aware, the president signed into law a weakened version of the leave law on March 18th that goes into effect 15 days later, on April 2, 2020. While this is a sweeping law that covers a lot of ground, there are still a lot of unanswered questions. The Department of Labor has until April 2nd to provide guidance on how this will be implemented.
At a high level, all employers under 500 employees are covered by the legislation, which significantly provides for two weeks’ of paid leave (subject to income caps) and expanded FMLA rights.
Most significantly, the new FMLA leave is now paid leave. From an employer perspective, you will be reimbursed via tax credits for the actual cost of the leaves (subject to the caps). If this exceeds your tax liability (nonprofits take note), you will receive a check from the government. Again, how all this will actually be administered is in the hands of the DOL.
Sick Leave (80 hours) – available to any employee, regardless of length of service. They receive 100% of pay up to a cap of $511 per day and $5,110 in aggregate.
- Experiencing symptoms of COVID-19 and are seeking a medical diagnosis
- Employees subject to a government quarantine or have been told by a healthcare provider to self-quarantine.
- Note: If they are staying home to assist an individual who must quarantine they are eligible for 2/3 regular rate of pay capped at $200 per day/$2,000 in aggregate.
- Employees that must care for a child whose school or daycare is closed because of COVID-19. They will be eligible for 2/3 of their regular rate of pay subject to the $200 per day/$2,000 in aggregate cap.
Expanded FMLA – up to 12 weeks of job protected leave available when an employee is unable to work or telework due to the need to care for a son or daughter under the age of 18 due to their school being closed due to the COVID-19 health emergency – the first 10 days unpaid (but could be covered by sick leave above). Remainder of period covered at 2/3 regular rate of pay capped at $200 per day and $10,000 in aggregate. This benefit is only available to those who have worked for the employer at least 30 days (a significant change from normal FMLA eligibility)
- Note: there are additional components like unemployment benefits, food and medical aid, etc. I stayed focused here on the key employer leave topics but happy to discuss the other items if you are interested.
As noted above, there are a lot of unanswered questions. Where this will get interesting is in situations where layoffs have or are planned to happen. In cases where the employee is caring for a child, the bar seems pretty low for coverage, which may prevent the layoff from happening. Additionally, there are provisions that would allow employers with under 50 employees to exempt themselves if compliance will put them out of business. This seems interesting given the government is going to pay for the leave and the president has stated they will advance funding if necessary.
In summary… we need to be calm and patient while awaiting the final DOL interpretation. In the meantime, we should take the time to assess potential impact on our workforce, and depending upon whether you have dealt with FMLA before (since, until now, employers under 50 were not subject to compliance), now is a good time to get familiar with the procedures.
Even then, some of the provisions (like medical certification) are going to get very interesting when people are not able to get tested or see their physician face-to-face.
Finally, if you are starting to contemplate workforce reductions, this may have some impact (positive or negative) on those plans.
As always, please reach out if you have any questions. The CTCS Group is here to help.
Chris Thomas, SHRM-SCP is the Principal Consultant with The CTCS Group in Canton, GA. The CTCS Group is focused on providing HR Leadership, Behavioral Assessments, and Consulting to help small businesses grow and thrive. You can subscribe to this blog or request a free consultation at www.thectcsgroup.com.
Disclaimer: The information and recommendations provided in this document should not be considered legal advice and should not substitute for legal advice where the facts and circumstances warrant. Recommendations are provided based on good faith assessment and interpretation of the available legal and regulatory resources.