Additional Employee Paid Leave Protections

Federal Government Responds to Coronavirus Outbreak

On March 18, 2020, President Trump signed Congress’s Families First Coronavirus Response Act (the “Act”) as emergency legislation to help Americans affected by the coronavirus crisis. EP wanted to inform our production clients about the general nature of the employee paid-leave protections provided by the Act. EP intends to follow up with guidance on the nature of assistance that EP will be able to provide to production clients in connection with the Act.

Emergency Family and Medical Leave Expansion Act

The Act expands family and medical leave by requiring an employer of fewer than 500 employees to provide up to 12 weeks of job-protected leave if the employee has been on the employer’s payroll for at least 30 days. Eligible employees who cannot work or telework may use leave to care for the employee’s son or daughter who is under 18 years old, if schools close or childcare providers are unavailable due to a public health emergency.

As between EP and the production company, production companies would act as the employer responsible for compliance, similar to the federal Family Medical Leave Act, because the production company hires, schedules, and controls the employee’s work. In preparing to administer benefits under the Act, employers should note that the leave may be unpaid for the first 10 workdays of the 12-week maximum leave period, during which time the employee may choose to use accrued vacation leave, personal leave, or medical or sick leave. But after 10 workdays, the employer must provide paid leave for each workday that an employee takes off work for a qualified emergency leave.

Except for the referenced 10-workday unpaid portion that employers may exercise, full-time workers taking paid medical leave under the Act are entitled to two-thirds of their regular rate of pay for up to 12 weeks for the number of hours the employee would otherwise be scheduled. Part-time employees taking paid medical leave under the Act are entitled to be paid based on the average number of hours they worked for the six-month period prior to taking the emergency leave. And for those part-time workers who worked less than six months, they are entitled to the employee’s reasonable expectation at hiring of the average number of hours they would normally be scheduled to work. Paid family leave under the Act is limited to $200 per day up to a total of $10,000 per employee for the aggregate 12-week leave period.

Production companies that are subject to collective bargaining agreements remain subject to the Act if their collective bargaining agreements (CBAs) do not provide for equivalent sick and paid family benefits payable by a fund, plan, or program under the CBA.

The Act takes effect by April 2, 2020 (not later than 15 days after its enactment) and sunsets on December 31, 2020.

Emergency Paid Sick Leave Act

In addition to paid family and medical leave, the Act would require employers of fewer than 500 employees to provide emergency paid sick leave to an employee who is unable to work or telework if the employee is:

  1. subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. advised by a health care provider to self-quarantine due to COVID-19 concerns;
  3. experiencing COVID-19 symptoms and is seeking medical diagnosis;
  4. caring for “an individual” who is subject to a federal, state, or local quarantine or isolation order, or was advised by a health care provider to self-quarantine due to COVID-19 concerns;
  5. caring for the employee’s child if the child’s school or place of care is closed, or if the child’s care provider is unavailable due to a public health emergency; or
  6. experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Full-time employees are entitled to 80 hours of paid sick time under the Act, while part-time employees are entitled to be paid for the average number of hours the employee works on average during a 2-week period.

Also, employees are entitled to paid sick leave under the Act at their regular rate of pay for covered reasons (1)-(3) above capped at $511 per day up to $5,110 in the aggregate per employee. For covered reasons (4)-(6) above, the employee is entitled to two-thirds the employee’s regular rate of pay capped at $200 per day up to $2,000 in the aggregate per employee.

Paid sick time under this measure does not carry over from one year to the next, and it may be in addition to paid sick leave already provided by the employer. Employers may not require employees to use other paid leave provided by the employer before employees use the emergency paid sick time under this Act. Emergency paid sick leave under the Act expires on December 31, 2020. For the same reason specified above, production companies subject to CBAs remain covered by this part of the Act if they do not contribute to a fund, plan, or program under the CBA that provides for sick leave.

The Act also provides tax credits to employers for the employer portion of social security taxes (FICA) to subsidize the cost of providing qualified sick leave wages under the Act, up to a cap of $511 per day (and $200 per day if the leave relates to caring for another) for up to two weeks per employee per calendar quarter. Employers additionally are entitled to a refundable tax credit equal to 100% of the qualified family medical leave wages under the Act, up to a cap of $200 per day for each individual up to a total of $10,000 per employee per calendar quarter.

Workplace Safety, Medical Leave & Anti-Discrimination Considerations

Employers have a responsibility to provide safe and healthful working conditions for their workforce and are, therefore, recommended to monitor and follow the latest CDC and OSHA health protective guidance.  Click here for OSHA and CDC  employer guidance. The degree of suggested measures differs, depending on exposure risk attendant to the business, such as high risk for the health care sector dealing with coronavirus cases, medium risk for restaurant, hotel and other high-volume public contact businesses, and low risk for minimal public contact office environments.

Recommended business practices to minimize potential workplace spread of coronavirus include:

  1. Foster telework to minimize group contact at the workplace;
  2. Limit on-site work to essential business activities incapable of remote performance;
  3. Hold virtual rather than live group meetings using telecommunication technology;
  4. Direct ill or exposed employees to stay home (e., self-quarantine) for at least 14 days;
  5. Eliminate non-essential business travel;
  6. For essential business travel, avoid high risk areas and use alternatives to commercial carriers;
  7. Enhance use of janitorial services to improve disinfection of high-touch objects/common areas;
  8. Practice good hygiene (frequently wash hands and use hand sanitizer);
  9. Maintain at least 6-feet of distance from others when possible; and
  10. Keep workforce informed of workplace health developments and public health advisories.

In addition to coronavirus-specific federal emergency paid sick and family medical leave legislation above, existing family medical and sick leave laws could apply as well, depending on the situation, and employers will have to comply, as with any other triggering health condition under these laws.

It is important for employers to maintain consistency in applying workplace safety measures to avoid the risk of targeting employees who may then claim (mis)perceived disability discrimination.

Unemployment Insurance Relief

In response to guidance issued by the U.S. Department of Labor (DOL), states are permitted to amend their laws to allow the payment of unemployment benefits to workers affected by the coronavirus in multiple scenarios. In line with this guidance, we understand that many states may take advantage of the guidance and waive conditions that generally required individuals to be (i) physically able to work, (ii) available for work, and (iii) actively seeking work to receive benefits. We also note that states with a one-week-waiting period to receive unemployment benefits may waive this requirement as well (California and New York have a one-week-waiting period).

The DOL has offered flexibility to provide unemployment benefits in the following scenarios:

Scenario 1:  Employer temporarily ceases operations.

An employer temporarily shuts down due to coronavirus, with the expectation that the individual will return when business resumes.

Scenario 2:  Individual is quarantined and will return to employer.

An individual is quarantined by a medical professional or under government direction, and the employer has instructed the individual to return to work after the quarantine ends.

Scenario 3: Individual quarantined or at-risk is not returning to the employer.

An individual is quarantined by a medical professional or under government direction, or leaves employment due to a reasonable risk of exposure or infection (i.e., self-quarantine) or to care for a family member, and either does not intend to return to the employer or the employer will not allow the individual to return.

EP is closely monitoring all states and will update our website with any material developments.

California Employment Development Department Guidance

The California Employment Development Department (EDD) has issued guidance for workers affected by the coronavirus. If an individual is unable to work due to having or being exposed to COVID-19 (as certified by a medical professional), the worker can file a disability insurance (DI) claim.  DI provides short-term benefit payments to eligible workers who have a full or partial loss of wages due to a non-work-related illness, injury, or pregnancy. Benefit amounts are approximately 60-70 percent of wages (depending on income) and range from $50-$1,300 per week.

 

For any questions about this alert, you may contact:

Joseph Scudiero, Senior Vice-President & Chief Labor Counsel
jscudiero@ep.com

Scott Bishop, Vice-President, Employment Law
sbishop@ep.com

Pantea Lili Ahmadi, Senior Corporate & Employment Counsel
pahmadi@ep.com