April 1, 2020

Paid Leave Coverage Update

The U.S. Department of Labor (“DOL”) continues to release Guidance interpreting the Emergency Paid Sick Leave Act (“EPSL”) and the Emergency Family and Medical Leave Act Expansion (“E-FMLA”) in anticipation of issuing final regulations.  It is now clear that employees laid off and furloughed due to lack or work and stay at home orders as a result of the COVID – 19 Pandemic, are not entitled to paid leave under the EPSL or the E‑FMLA.  Certain provisions of EPSL and E-FMLA may entitle employees of companies with fewer than 500 employees to paid leave, to the extent those employees are unable to work or telework due to specific and limited circumstances outlined in the ESPL and E-FMLA should these circumstances occur between April 1, 2020 and December 31, 2020.  Recent DOL Guidance clarifies some of the uncertainty related to paid leave available under the ESPL and E-FMLA and means that paid leave obligations of companies are less onerous than originally anticipated.

Employees on Furlough or Layoff Have No Right to Receive Paid Leave

Although the EPSL expressly provides for paid leave in the event of a “Federal or State or Local quarantine or isolation order” recent DOL Guidance suggests that companies are not required by the EPSL or E-FMLA to provide paid leave to employees laid off or furloughed due to stay at home orders or lack of work during the COVID-19 pandemic.  Even if a company is on partial shutdown and employees are laid off or furloughed, those employees on layoff are not entitled to receive paid leave benefits. Paid leave only applies to employees who are unable to work or telework for the specific reasons set forth in the EPSL and E-FMLA.

Circumstances Requiring Paid Leave Under ESPL and E-FMLA
EPSL Paid Leave Entitlement

Under the EPSL, employees unable to work or telework for covered employers are entitled to receive up to 80 hours of paid sick leave equal to 100% of their regular rate of pay, up to a maximum of $511/per day, if their inability to work or telework is due to a need for leave because:  (a) the employee is subject to quarantine by government order; (b) the employee is advised by a healthcare provider to stay home; or (c) the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.

Employees unable to work or telework for covered employers are entitled to receive up to 80 hours of paid sick leave equal to 2/3 of their regular rate of pay, up to $200/day, if their inability to work or telework is due to a need for leave based upon:  (a) the employee’s need to care for an individual who is subject to a government quarantine order; (b) the employee’s need to care for an individual who is advised to stay home by a healthcare provider; or (c) the employee’s need to care for a child (under the age of 18) whose school or child care provider is closed or unavailable for reasons related to COVID-19.

All employees who fall within one of the above categories are entitled to receive the applicable amount paid leave immediately upon employment regardless of their length of service to their company.

E-FMLA Paid Leave Entitlement

E-FMLA is a temporary amendment to the Family Medical Leave Act (“FMLA”). This amendment entitles employees who are unable to work or telework for covered employers  to receive 2/3 of their regular rate of pay up to $1000/week for a maximum of ten (10) weeks if their inability to work or telework is due to their need to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19.

All employees who fall within the above category are entitled to receive the applicable paid leave as long as they have at least 30 days of active service on behalf of their company.  The 10 week paid leave entitlement is reduced if an employee has previously used FMLA time regardless of whether the leave was paid or unpaid.

There are still many open questions regarding EPSL and E-FMLA.  However, the DOL will release regulations so further clarifications are expected.  For this reason, the DOL also indicated that it will not enforce violations of the EPSL or E-FMLA for 30 days following implementation so long as a company is acting in good faith in attempting to comply.  Employees on a leave of absence due to layoff or furlough, who do not qualify for paid leave under the EPSL or E‑FMLA, may apply for enhanced unemployment benefits.

Finally, all covered employers are required to post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, the following notice of employees’ rights, which can be found HERE.

Employers should contact Kerr Russell employment attorneys for further discussion of issues related to EPSL or E-FMLA.

Mark C. KnothImage of Mark C. Knoth, Employment and Labor attorney of Kerr Russell chairs the firm’s Labor, Employment, Employee Benefits & ERISA Practice Group. He counsels and advises business owners, managers and human resources professionals on workplace issues. These include civil rights and anti-discrimination laws; employee discipline; wage and hour; overtime; employee leaves; reasonable accommodations; veterans issues; picketing; secondary boycotts; reductions in force; drug testing; unemployment compensation; affirmative action; and union organizing campaigns, among other matters. He additionally drafts employee policies, handbooks, contracts, and covenants not to compete, and investigates threats of violence, allegations of harassment, and other employee misconduct.

Liam K. HealyLiam K. Healy of Kerr Russell practice clients maintain compliance with state and federal tax laws that govern individuals and businesses focuses his practice on helping clients maintain compliance with the myriad of state and federal tax laws and regulations that govern individuals and businesses. A particular focus of Liam’s practice is in the area of employee benefits and ERISA. Liam specializes in designing pension and executive compensation plans to benefit business owners and executives. His practice includes drafting and reviewing deferred compensation agreements, severance agreements and non-compete agreements, representing employers in multi-employer plan collection and withdrawal liability matters.

 

Olivia HankinsonOlivia V. Hankinson counsels and advises business owners, managers and human resources professionals on various labor and employment related issues. These often involve concerns which may implicate employment laws including the Americans with Disabilities Act, Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Michigan Persons with Disabilities Civil Rights Act, the Family and Medical Leave Act, the National Labor Relations Act, and the Michigan Occupational Safety and Health Act. Olivia represents employers with respect to unemployment insurance hearings, MIOSHA violation allegations, EEOC investigations, and other employment law matters. She also drafts employee handbooks, employment agreements, restrictive covenants, and various other employment policies.

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