Yesterday evening, President Trump signed the Families First Coronavirus Response Act that, among other relief, provides limited paid leave benefits to employees of employers with less than 500 employees. Those benefits are summarized below. The benefits take effect on April 1, 2020, so affected employers should start preparing now.
Expansion of the Family Medical Leave Act (FMLA) For Childcare Due to School Closures
The law expands FMLA to require employers with less than 500 employees to provide up to 12 weeks of limited paid leave to eligible employees only if the employee is unable to work or telework because they need to care for their minor son or daughter due to school closure or child care no longer being available due to a government order related to COVID-19. That would apply in Oregon where all public schools have been closed by the order of the Governor and some child care facilities are also closed as a result.
An employee is eligible for this leave if they have worked for the employer for at least 30 days. However, employers of health care providers and emergency responders can choose not to exempt them.
The first 10 days of leave is unpaid, but the employee can use any other type of paid leave they may have already accrued. After that, the leave is paid at 2/3 the employee’s regular rate of pay for the number of hours they would have normally worked. But the pay is capped at $200 per day and $10,000 total.
The law authorizes the Secretary of Labor to issue regulations to exclude certain health care providers and to exempt small businesses with fewer than 50 employees when the leave would jeopardize the ability of the business to continue operating. However, unless and until those regulations are issued, these exemptions are not yet available.
Employees who take leave are entitled to be returned to their job unless the employer has less than 25 employees and the position no longer exists due to economic conditions or changes in operating conditions that affect employment caused by the COVID-19 public health emergency. In that case, the employer must make reasonable efforts to restore the employee to an equivalent position. If one does not exist, the employer must make reasonable efforts for the next year to contact the employee if an equivalent position becomes available.
Emergency Paid Sick Leave
Employers with less than 500 employees must provide all of their employees with paid sick leave if the employee is unable to work or telework under the following circumstances:
- The employee is being forced to quarantine or isolate by a government quarantine order related to COVID-19. This would apply if a shelter in place order is implemented that prevents the employee from coming to work or teleworking.
- The employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
- The employee needs leave to care for an individual who is ordered to quarantine or isolate due to COVID-19.
- The employee needs to care for a minor son or daughter due to their school or child care being closed or unavailable due to COVID-19 precautions.
- The employee is experiencing “other substantially similar conditions” specified by the Sec of Health and Human Services. So far this is not applicable, but is something to monitor.
Full-time employees get 80 hours of leave. Part-time employees get leave equal to the average number of hours they work in a 2-week period. This leave is available immediately once the law goes into effect.
Once the leave is used, it is gone. No additional leave accrues beyond the initial amount required by the law. Unused leave does not carry over to next year, and is not paid out or usable after termination of employment for any reason.
Employers cannot require employees to find someone to cover their shift before taking leave.
How much pay the employee receives depends on the reason for the leave. If the employee takes leave under circumstance 1-3 above, then they are paid the number of hours they normally would have worked at their regular rate of pay or minimum wage, whichever is higher. Paid leave is capped at $511 per day or $5,110 total. If the employee takes leave under circumstance 4-6 above, then they only need to be paid 2/3 their regular pay and the pay is capped at $200 per day or $2,000 total.
This paid leave benefit is in addition to any other paid leave the employer may already provide. The employee can choose to use this paid leave benefit first before accessing any other paid leave they may have available. The employer cannot require employees to take other paid leave before taking this leave.
Employers can choose to exclude employees who are health care providers or emergency responders. There is no other exemption available.
The law prohibits retaliation against employees who ask about these leave benefits or use them.
Oregon’s Sick Time Law
A reminder that Oregon’s Sick Time law applies to most employee absences due to COVID-19 or related school closures. If you offer PTO in lieu of Oregon Sick Time, then the employee needs to be able to use PTO for those purposes.
Oregon Family Leave Act (OFLA)
Yesterday, the State made clear that OFLA applies to leave to care for a child due to school closure or lack of child care as a result of COVID-19. Employers subject to OFLA must make sure to provide OFLA leave to eligible employees in those circumstances. The leave is unpaid like all other OFLA leave.
If you have any questions about this notice or any other issue facing your business during this crisis, we are here to help. You can contact Shane Swilley at email@example.com or (503) 276-6074. Thank you, and stay safe. Together we will get through this.