COVID-19 EMPLOYER ALERT – NEW PAID SICK LEAVE

STATE AND FEDERAL LEAVE LAWS ARE EXPANDED TO ADD PROTECTIONS RELATED TO COVID-19 PANDEMIC

SUMMARY

Effective immediately, Oregon Family Leave Act sick child leave has been expanded toinclude time off to care for an employee’s child whose school or place of care hasbeen closed in conjunction with a statewide public health emergency declared by apublic official. For more information, please see below or contact any of the attorneys atPeck Rubanoff & Hatfield at 503- 303-7240.

Effective April 2, 2020, the federal Family Medical Leave Act has been expanded for allpublic employers and private employers with fewer than 500 employees to require paidtime off to care for the employee’s minor child whose school or childcare provider is closedor whose childcare provider is unavailable due to a declared public health emergencyrelated to COVID-19. Any employee who has been employed for at least 30 days iseligible for this leave.   For more information, please see below or contact any of theattorneys at Peck Rubanoff & Hatfield at 503- 303-7240.

Effective April 2, 2020, federal law requires most FLSA covered employers (exceptprivate employers with 500 or more employees) provide employees with 2 weeks of paidsick leave for absences related to COVID-19 symptoms, quarantine, isolation andschool/childcare closures. There is no waiting period and employees may use this leaveimmediately – regardless of how long they’ve been employed. For more information,please see below or contact any of the attorneys at Peck Rubanoff & Hatfield at 503-303-7240.

KEY PROVISIONS OF THE NEW LAWS

OREGON FAMILY LEAVE ACT: Effective Immediately!

Eligible employees may take job protected OFLA leave for absences to care for an employee’s child whose school or place of care has been closed in conjunction with a statewide public health emergency declared by a public official. This new leave has been designated as a form of non-seriously ill ‘sick child’ leave.

This new type of leave does not increase the total amount of OFLA leave eligible employees are entitled to take during a leave year or change the employeeeligibility requirements for OFLA. Remember: eligible employees may take up to 12workweeks of OFLA in a leave year except:

  • Employees who take pregnancy disability leave may take an additional 12weeks for any qualifying purpose in the same leave year.
  • Employees who take the full 12 weeks of parental bonding leave maytake an additional 12 weeks of non-seriously ill ‘sick child’ leave whichincludes this new form of leave) in the same leave year.

This is a temporary addition to OFLA and is available through September 13, 2020.

FEDERAL FAMILY MEDICAL LEAVE ACT EXPANSION: Effective April 2, 2020

Adds “Public Health Emergency Leaves” to the qualifying reasons for FMLA

  • Public Health Emergency = emergency with respect to COVID-19 declaredby a Federal, State or local authority.

Job protected Public Health Emergency FMLA can be used by any employee of a qualifying employer who:

  • Has been employed for at least 30 days, and
  • Is unable to work (or telework) due to a need to care for a son or daughter(broadly defined) under age 18 if the child’s school or place of care has been closed or the childcare provider is unavailable due to a public health emergency.

NOTE: Employers of healthcare providers and/or emergency respondersmay choose to exclude such employees from this type of leave.

Applies to all public employers and private employers with less than 500 employees

  • Unless the U.S. Dept. of Labor issues regulations exempting employers withfewer than 50 employees because the requirement would jeopardize theviability of the business.
  • BUT – these regulations have not yet been issued – Stay tuned for further updates!

The first 10 workdays of Public Health Emergency FMLA used may be unpaid

  • BUT – the new federal PAID SICK LEAVE requirements may apply to this time.
  • Other paid leave may be used in accordance with normal FMLA rules

Each day taken beyond the first 10 workdays must be PAID

  • Pay may be at 2/3 the employee’s regular rate
  • Pay must be for the number of hours the employee would normally bescheduled to work on the day the leave is used. Special rules apply for employees whose hours vary
  • Pay can be capped at $200 per day and $10,000 aggregate

Employees who take Public Health Emergency FMLA are entitled to job protection & reinstatement unless all of the following apply:

  • The employer has fewer than 25 employees
  • The employee’s position does not exist due to economic conditions or other changes in operating conditions that
    • affect employment, and
    • are caused by a public health emergency during the period of leave.
  • Employer makes reasonable efforts to place the employee in an equivalent position
  • If the employee can’t be place in an equivalent position, the employercontacts the employee if an equivalent position becomes available within 1year (after the leave ends or expires)

This is a temporary addition to FMLA and is available through December 31, 2020

NEW PAID SICK LEAVE REQUIREMENT: Effective April 2, 2020

Who is covered?

  • Applies to all FLSA covered employees beginning on the first day of employment

NOTE: Employers of healthcare providers and/or emergency responders may  choose  to  exclude  such  employees  from  this  paid  sick  leave requirement

  • Most FLSA covered employers
    • The law does not cover private employers with 500 or more employees

How much paid sick leave do employees get?

  • Full-time employees = 80 hours
  • Part-time employees = average # of hours the employee works over a 2-week period
  • This leave is in addition to any state or local paid sick leave requirements and benefits provided under any employer policy or agreement.

What time off reasons are eligible for paid sick leave benefits?

  1. The employee is subject to a quarantine or isolation order for COVID-19 (by federal, state or local authority)
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19
  3. The employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis
  4. The employee is caring for an individual subject to #1 or #2, above
  5. The employee is caring for a son or daughter (broadly defined) if the school or place of care has been closed or the childcare provider is unavailable, due to COVID-19 precautions
  6. The employee experiences a substantially similar condition as specified by the secretary of health and human services.

What rate of pay applies to paid sick leave?

  • Time off for Employee’s own quarantine, isolation or symptoms (reasons1-3, above)
    • Employee’s regular rate of pay (or minimum wage – including federal, state, local rates), whichever is higher.
  • Time off to care for others (reasons 4-6, above)
    • Pay may be at 2/3 the employee’s regular rate
  • Pay must be for the number of hours the employee would normally bescheduled to work on the day the leave is used. Special rules apply foremployees whose hours vary
  • Pay can be capped
    • At $511 per day and $5,110 aggregate for time off for employee’s own quarantine, isolation or symptoms (reasons 1-3, above)
    • At $200 per day and $2,000 aggregate for time off to care for others (reasons 4-6, above)
  • Employers cannot require employees to use other accrued paid leavesbefore using this new sick leave benefit

Violations are considered FLSA minimum wage violations.

This is a temporary requirement and is available through December 31, 2020

For more information and advice on compliance with these laws, please contact theattorneys at Peck Rubanoff & Hatfield at 503-303-7240.