As a small business owner, this new law impacts you more than any other group. Here is what you need to know.
GENERAL OVERVIEW
Overview: There are two parts to the recently passed Families First Coronavirus Response Act. One part is for Emergency Paid Sick Leave and the other part is for Emergency Family Medical Leave (collectively referred to as “Emergency Leave”). The new Emergency Leave laws allow employees who 1) are working for employers with fewer than 500 employees, 2) are employed at the time the request is made for EPSL or are employed for at least 30 calendar days before requesting EFML, and 3) who are otherwise eligible as described below, to take up to 14 weeks of Emergency Leave (of which only 12 weeks must be paid by the employer). The Emergency Leave laws go into effect no later than 15 days from March 18, 2020, and they have an expiration date of December 31, 2020.
Caution: Employers who do not provide the Emergency Leave in accordance with these laws or who discriminate/retaliate against individuals for taking Emergency Leave are subject to individual lawsuits or potential collective actions under the Fair Labor Standards Act (“FLSA”) or the Family Medical Leave Act. Under the FLSA, employers who violate the law will be required to pay double damages, reinstate the employee to their job and pay the employee’s legal fees. Willful violations may result in criminal liability. In addition, the FLSA allows for individual owners who control the operations of the business to be personally liable for any failure to follow the law.
Exemptions: These laws exempt employees of healthcare providers and emergency responders at the option of the employer. The Secretary of Labor may provide an exemption for businesses with less than 50 employees when “the imposition of the requirements would jeopardize the viability of the business as a going concern.” It is unclear how and when that will be determined.
PART 1 – EMERGENCY PAID SICK LEAVE
How Much Emergency PSL Must be Provided
Full-time employees may receive up to 80 hours of paid leave at their regular rate of pay, which includes one of the following:
• Up to $200 a day (aggregate of $2,000 total) when taking leave to care for someone else
• Up to $511 per day (aggregate of $5,110 total) if taking leave for their own needs.
Part-time employees may receive pay equal to their average number of hours worked during a normal two-week period.
Who Qualifies For Emergency PSL
Employees qualify when they are:
• Diagnosed with coronavirus or needing to obtain a medical diagnosis or care because the employee is experiencing the symptoms of coronavirus.
• Complying with a recommendation or order by a public official having jurisdiction or a health care provider on the basis that the employee’s physical presence at the job would jeopardize the health of others because the employee has been exposed to or has symptoms of coronavirus.
• Assisting a family member diagnosed with coronavirus or who needs a medical diagnosis, or because a public official or health care provider has decided that the family member’s presence in public would jeopardize the health of others because of the family member’s exposure to of symptoms of coronavirus.
• Caring for the employee’s child if the school or place of care has been closed or not available due to the coronavirus.
PART 2 – EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION
How Much Emergency FMLA Leave Must be Provided
Emergency FMLA allows eligible employees to take up to an additional 12 weeks of Emergency FMLA Leave (of which only 10 must be paid by the employer). The employer must pay the eligible employee at two-thirds the employee’s regular rate of pay up to $200 a day (with a cap of $10,000 in aggregate). If eligible, the employee may use the 80 hours of Emergency PSL concurrently with Emergency FMLA so that they receive 12 weeks of paid Emergency Leave.
Who Qualifies for Emergency FMLA Leave
Eligibility is narrower than the Emergency PSL. Emergency FMLA applies only to employees who are unable to work because he or she must care for a child under 18 years of age whose school or place of care was due to a declared public health emergency related to the coronavirus.
TAX CREDIT
Employers are eligible for a 100% tax credit applied against the Social Security taxes that the employer/self-employed taxpayer pays on wages up to $137,700. This credit will be available through Q4 2020.
NOTICES AND ANTI-RETALIATION
The employer must provide notice of requirements under this law to their employees. The Secretary of Labor will provide a model notice within seven days of enactment of the law.
Additionally, an employer may request “reasonable notice” from the employee regarding the employee’s need to receive Emergency Leave and the employee’s need to receive continuous Emergency Leave.
An employer cannot discriminate or retaliate against an employee for using paid sick leave or for raising a complaint. Additionally, an employer cannot require that the employee find a replacement to cover the hours the employee will miss on Emergency Leave.
ARIZONA PAID SICK LEAVE
Nothing in this law supersedes or contradicts the Arizona Paid Sick Leave (APSL) law. Employers must comply with both laws. In effect, if you are a business with more than 15 employees, you may be subject to providing employees with 40 hours of APSL an additional 40 hours (or one week) worth of paid leave on top of the Emergency Leave outlined above. Alternatively, employees may use APSL congruently with their use of Emergency FMLA leave so that they receive pay for 11 of the 12 weeks of Emergency FMLA.
Contact Counxel Legal Firm
We look forward to helping you through this interesting time. For help, please contact us at (480) 744-6621 or at request@counxel.com. Don’t forget to check out the good things that others are saying about the services they received from Timothy Coons on Google.
This article is intended for informational purposes only and does not constitute legal advice for your specific situation. Use of and access to this article does not create an attorney-client relationship between you and Counxel Legal Firm. Please contact request@counxel.com or (480) 744-6621 to request specific information for your situation.
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