By:  Adam Konstas, Esquire and Paul Finamore, Esquire

On March 18, 2020, the U.S. Senate passed the “Families First Coronavirus Response Act” and President Trump signed the Act into law shortly after.  The law becomes effective no later than 15 days after enactment.  It remains unclear when the law will actually go into effect, pending further information from the Department of Labor, but it will certainly become effective no later than April 2^nd.

Here is what you need to know now:

Emergency Paid Sick Leave Act:

• Which employers are covered?
  • Private sector employers with fewer than 500 workers and government entities.
• What are the reasons for which leave may be taken:
  • The employee is unable to work or to telework because:
    • the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
    • the employee has been advised by a health care provider to self-quarantine because of COVID-19;
    • the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
    • the employee is caring for an individual subject or advised to quarantine or isolation;
    • the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
    • the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
• How much leave is available?
  • 80 hours for full time employees. For part time employees, the equivalent of the average number of hours worked in a two week period.
  • Paid sick time ends beginning on the next scheduled workshift immediately following termination of the need for sick time.
• How much pay is available?
  • Employees taking leave due to the employee’s own quarantine or symptoms must be paid at their normal wage with a cap of $511 per day and $5,110 in the aggregate.
  • Employees taking leave to care for family members must be paid at least two-thirds of their regular with a cap of $200 per day and $2,000 in the aggregate.
• When may an employee start using sick leave?
  • Sick leave is available for immediate use regardless of how long the employee has been employed by the employer.
  • An employer may not condition leave on a requirement that an employee search for or find a replacement for their absence.
• What happens if an employer does not comply with the law?
  • The employer will be considered to have failed to pay minimum wage under the Fair Labor Standards Act and will be subject to penalties under the Act.
• What are some other requirements of the Emergency Paid Sick Leave Act?
  • Paid sick leave does not carry over year to year and does not get paid out on termination of employment.
  • Employers may not require the employee to use other paid leave before using paid sick leave provided under the law. This is significant in that employers cannot dock leave time available under PTO or sick leave or charge an employee with the use of Sick and Safe Leave under Maryland’s Healthy Working Families Act.
  • Employers are prohibited from requiring workers to find replacements to cover their hours during time off; or discharging or discriminating against workers for requesting paid sick leave or filing a complaint against the employer related to paid sick leave.

Emergency Family Medical Leave Expansion Act:

• Which employers are covered?
  • Covered employers with fewer than 500 employees and government entities.
  • This is a significant expansion of the law, which previously only included “covered employers” with 50 or more employees within a 75 mile radius.
• Which employees are eligible?
  • The expansion increases coverage to employees who have been employed with the employer for at least 30 days and are unable to work or telework due to their minor child’s school or place of child care being closed.
  • Previously, there was a 1 year and 1,250 hour requirement, which no longer applies.  All of the other qualifying needs for FMLA continue to apply. However, the expansion only requires paid leave for employees who need leave as a result of a “qualifying need related to a public health emergency.”
• What type of leave is expanded by the Act?
  • The expansion applies to “qualifying need related to a public health emergency,” which is leave that results from a school or place of care closing or a child care provider being unavailable due to a public health emergency. The public health emergency is defined as an emergency with respect to COVID-19 declared by federal, state or local authorities.
• How much leave is available?
  • 12 weeks
• Is the expanded FMLA leave paid?
  • The first 10 days of leave can be unpaid (but may be substituted with other available paid leave), and then subsequent absences are paid at 2/3 the employee’s regular rate, capped at $200/day and $10,000 in aggregate.
• Does the emergency FMLA leave include job protection?
  • The employee on emergency FMLA leave must be restored to his or her prior position.
  • However, the job protection provision does not apply to employers with fewer than 25 employees if the position held by the employee no longer exists due to economic conditions and other changes in the employer’s operations caused by the coronavirus pandemic and the employer makes reasonable efforts to restore the employee to an equivalent position during the 1 year period following the date the employee no longer needs to take the leave or 12 weeks after the commencement of the paid leave whichever is earlier.

Other Considerations:

• Small business with fewer than 50 employees may be exempted from these laws when the imposition of their requirements would jeopardize the viability of the business as a going concern. Stay tuned for more Department of Labor guidance.
• Employers required to provide emergency paid sick leave or expanded family medical leave may apply for certain tax credits for those payments.
• Neither the emergency paid sick leave act nor the emergency family medical leave expansion act provide paid leave to an employee who is laid off.  However, the bill provides for the Secretary of Labor to make emergency grants to states in the unemployment insurance trust fund. Refer to state unemployment insurance law for information about benefits available to laid off employees.
• Both laws expire on December 31, 2020.

 Employers should review their current policies and begin preparing to comply with these new laws immediately, but certainly will need to be compliant no later than April 2^nd.

Adam E. Konstas is an Attorney in PK Law’s Education and Labor Group.  He represents local school boards, superintendents, private schools, colleges, and private sector employers before federal and state courts, and federal and state civil rights agencies on a variety of matters, including employment discrimination litigation, teacher and student discipline, collective bargaining, and sexual harassment. Mr. Konstas also advises schools on the design and implementation of policies and procedures regarding student and employee relations, and system-wide policy issues including the use of online instructional tools and cloud computing, student data privacy, anti-discrimination, and website accessibility. Mr. Konstas can be reached at 410-339-5786 or akonstas@pklaw.com.

Paul Finamore is a Member in PK Law’s Labor and Employment Group.  He is an experienced trial lawyer who has practiced in state and federal courts throughout Maryland and the District of Columbia for over 30 years. Mr. Finamore regularly counsels employers on employment issues, workplace policies, and compliance with federal, state, and local employment laws.  He began practicing in employment law while serving on active duty in the US Army Judge Advocate Generals Corps at Aberdeen Proving Ground.  As a trial lawyer, Mr. Finamore understands the importance of providing his clients with practical advice to assist them with balancing business risk while avoiding unnecessary litigation. However, in the event of litigation, Mr. Finamore has the depth of experience, skill and efficacy required.  Mr. Finamore can  be reached at 410-740-3170 or pfinamore@pklaw.com.

The information presented in this article has been prepared by Pessin Katz Law, P.A., is intended for informational purposes only, and is not legal advice. Transmission of this information is not intended to create, and receipt of this information does not constitute an attorney-client relationship. While we have attempted to provide information in this article as accurately as possible, the information in this article may contain errors or omissions for which we disclaim liability. This article contains information on legal issues and is not a substitute for legal advice from a qualified attorney licensed in an appropriate jurisdiction. Pessin Katz Law, P.A. expressly disclaims all liability with respect to actions taken or not taken based on any or all of the contents of this article.