On March 18, 2020, President Trump signed the Emergency Family First Coronavirus Response Act into law. into law. Applicable to private employers with fewer than 500 employees, this law includes an Emergency Family and Medical Leave, Emergency Paid Sick Leave, and Tax Credits for Paid Sick and Paid Family Medical Leave. The law also provides an Emergency Unemployment Insurance and Stabilization Act.
Below are highlight summaries of these four sections.
EMERGENCY FAMILY AND MEDICAL LEAVE
Effective April 01, 2020 until December 31, 2020.
Private-sector employers with 500 or fewer employees.
Any full-time or part-time employee who has been employed for at least 30 days prior to request. Note: This is different than standard OFLA and FMLA employee eligibility requirements.
Emergency Family and Medical Leave provides eligible employees with the right to take up to 12 weeks of job-protected leave under the Emergency Family Medical Leave Act (FMLA) due to “a qualifying need related to a public health emergency.” This is limited to when an employee is unable to work or telework due to the need to care for children under the age of 18 when school or place of care is closed, or child care is unavailable due to a public health emergency, which COVID-19 qualifies as.
Relationship to OFLA and FMLA
The Emergency Family and Medical Leave Law expands the reach of FMLA. In short, FMLA eligibility and qualifications remain the same except for one notable exception: when an employee is unable to work or telework due to the need to care for children under the age of 18 when school or place of care is closed, or child care is unavailable due to a public health emergency. If the employer and employee qualify for standard FMLA, outside of the Emergency Family and Medical Leave exception, the leave time would drain from the employee’s 12 week FMLA allotment. OFLA does not have this similar exception.
It is important to note an employee diagnosed with a confirmed case of Coronavirus may still qualify under FMLA and/or OFLA as a serious health condition for themselves or their family member. If so, employers should follow the normal family medical leave process. As a reminder, aside from this amendment, employers with 50 or more employees are covered by FMLA. For an employee to be eligible for FMLA, aside from this amendment, they must have been employed at least 12 months (not necessarily consecutive), and worked at least 1250 hours. For OFLA, employers with 25 or more employees in Oregon are covered. Oregon employees are eligible if they work 180 days for the employer and average 25 hours per week.
Relationship to Paid Leave
This leave is unpaid for the first 10 days. However, employees can use Emergency Paid Sick Leave (EPSL) during the first 10 days if they have that time available. If an employee has exhausted EPSL employers can require employees to use accrued time off provided by the company during this time, including Oregon Sick Leave.
After 10 days, eligible employers must provide paid leave at no less than two-thirds of an employee’s regular rate of pay. Capped at $200 per day and $10,000 in aggregate. Accordingly, employers can require employee’s to use their available paid time off benefits to meet this requirement. Once that is exhausted, then employers must still provide compensation at minimum at the levels described above.
Eligible employees have reinstatement rights to the same or equivalent position. There is an exception for employers with fewer than 25 employees where position does not exist due to economic conditions or other changes in operating conditions of the employer due to the public health emergency. The details of this exemption are to be determined through the legislative rulemaking process.
Small Employer Protections
The new law also provides an exemption for employers with less than 50 employees, protecting them from unpaid back pay and liquidated damages in the case of a FMLA related lawsuit. The details of this exemption are to be determined through the legislative rulemaking process.
EMERGENCY PAID SICK LEAVE
Effective April 01, 2020 until December 31, 2020.
Private-sector employers with 500 or fewer employees, public agencies, any entity that is not a private entity and anyone acting directly or indirectly in the interests of the employer. It is unclear as to what types of organizations the last two will apply. Note: This is different than Oregon Sick Leave employer eligibility which applies to almost all employers in Oregon even those with more than 500 employees.
Applies to all current employees regardless of length of employment. Note: This is different than normal Oregon Sick Leave eligibility, which is not required to kick in until after 90 days of employment.
This law is in addition to Oregon Sick Leave. Emergency Paid Sick Leave provides employees paid sick time when unable to work, including remotely, because:
- The employee is subject to a federal, state, or local quarantine or isolation related to COVID-19;
- The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for an individual who is subject to one of the two reasons above;
- The employee is caring for their son or daughter if the school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions;
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.
Full-time employees receive up to 80 hours of paid leave. Part-time employees receive a number of hours equal to the number of hours that such employee works, on average, over a two-week period. This paid sick leave is available to employees for immediate use. For reasons 1, 2, 3 listed above, employers must pay employees at their regular rate of pay, which is capped at $511 per day and $5,110 in aggregate. For reasons 4, 5, 6 listed above, employers must pay two-thirds of employee’s regular rate of pay, which is capped at $200 per day and $2,000 in the aggregate.
Relationship to Oregon Sick Leave
An employer may not require an employee to use other paid leave (such as Oregon Sick Leave or vacation) before the employee uses emergency paid sick time provided under this law. In contrast to Oregon Sick Leave, where employers can limit use until after 90 days of employment, employees may use paid sick leave immediately under this law. Additionally, under Emergency Paid Sick Leave, all private employers with fewer than 500 employees are covered (besides exceptions listed below). In contrast, Oregon Sick Leave applies to all employers in Oregon – the leave is paid unless employers have less than 10 employees in Oregon or 6 employees in Portland. Similar to Oregon Sick Leave, Emergency Paid Sick Leave does not have to be paid out upon separation. Employers are also not allowed to use any time off provided to employees prior to the effective date of this law toward an employee’s entitlement under this law.
In line with Oregon Sick Leave, employers are prohibited from discharging, disciplining or discriminating against employees who use paid sick time under this law.
Employers with fewer than 50 employees may be exempt from the Emergency Paid Sick Leave if the requirements would jeopardize the viability of the business as a going concern. The details of this exemption are to be determined through the legislative rulemaking process.
TAX CREDITS FOR PAID SICK AND PAID FAMILY MEDICAL LEAVE
This law provides refundable tax credit for each calendar quarter in an amount equal to 100 percent of the wages paid by employers for Emergency Family Medical Leave and Emergency Sick Leave.
EMERGENCY UNEMPLOYMENT INSURANCE AND STABILIZATION ACT
Under the Emergency Unemployment Insurance and Stabilization Act, the federal government will provide one billion dollars in additional funding for unemployment insurance benefits. This law also encourages states to become flexible in regards to eligibility under their unemployment compensation law and policies. Additionally, the Act authorizes states to extend unemployment insurance benefits beyond 26 weeks if necessary.
Related to this Act, on March 12, the US Department of Labor announced guidance to states regarding unemployment insurance flexibilities related to COVID-19. Typically, state run UI programs require individuals to be available and able to work. They must also be actively seeking work in order to receive compensation. However, due to the COVID-19 pandemic, the DOL reiterated that states have significant flexibility in implementing these requirements. Therefore, states may determine COVID-19 related layoffs, quarantines, and not being able to work due to COVID-19 exposure risk factors could qualify for unemployment insurance. To file for UI, employees do not have to be off of payroll but rather, they have to show lack of work. The DOL also pointed out that an individual receiving paid sick leave or paid family leave is still receiving compensation and therefore, those individuals generally would not qualify for UI. For information regarding Oregon’s Unemployment Insurance, click here.
Along with the federal legislation, Oregon’s Bureau of Labor and Industries (BOLI) has issued a temporary order expanding the reach of the Oregon Family Leave Act (OFLA) in response to COVID-19. Effective March 18, 2020 through September 13, 2020, eligible employees can utilize OFLA for emergency care for their child whose school or place of care has been closed in conjunction with a public statewide health emergency, which COVID-19 qualifies as.
As a reminder, employers with 25 or more employees in Oregon are covered under OFLA. Oregon employees are eligible for OFLA if they work 180 days for the employer and average 25 hours per week. If an employee is diagnosed with a confirmed case of COVID-19 or the employee needs to provide care for a family member diagnosed with COVID-19, it may still qualify OFLA as a serious health condition for themselves or their family member. If so, employers should follow the normal family medical leave process.
Cascade is still actively monitoring this situation, and will continue to provide additional guidance as information evolves. Please do not hesitate to reach out if you have any questions. Our team is prepared to answer your questions.