Updated Guidance on Federal and State COVID Leave Laws
The federal Department of Labor and New York State have issued additional guidance in the form of FAQs clarifying some of the ambiguities in the recently enacted leave laws. Below is a brief summary of some of the relevant clarifications.
Federal Sick Leave and Expanded FMLA
To determine whether the employer has fewer than 500 employees such that the federal law applies, the employer should take into account all full-time and part-time employees within the United States or any of its territories. The FAQs also provide further guidance on temporary employees and joint employers.
If the employee would normally have been scheduled to work overtime in excess of 40 hours per week, those extra hours must be included in the time paid to the employee. However, pay does not need to include a premium for overtime hours.
The FAQs make clear that the total sick leave for full-time employees is capped at 80 hours. This means that employees cannot take sick leave for their own quarantine purposes and then use an additional 80 hours for the closure of their child’s school.
The Expanded FMLA and federal sick leave law goes into effect on April 1, 2020. Employers who provided leave for one of the covered reasons prior to April 1 cannot count that leave against the new federal entitlements.
The DOL has developed a form notice which must be posted in a conspicuous place where all employees can see it. Given that many workers are now remote, the DOL has stated that emailing or direct mailing the notice to employees or posting it on an internal or external website with other employee information would be sufficient. New hires must also be provided with a copy of the notice.
The FAQs note that the DOL will be issuing implementing regulations, so additional clarity and guidance is expected, particularly on how small businesses with fewer than 50 employees can pursue an exemption from the applicable requirements of the law.
New York State Sick Leave
The FAQs clarify that the 5 and 14-day periods referenced in the statutes for leave refer to calendar days, and that employees are required to be paid the amount they would have otherwise received had they worked over that period.
Sick leave payments should be received in the paycheck for the applicable pay period for the leave.
Employees are not eligible for NYS emergency paid sick leave if they independently decide to quarantine. Rather, this leave is only available when New York State, the New York State Department of Health, a local Board of Health, or any authorized government entity issues a mandatory or precautionary quarantine order.
NYS emergency paid sick leave does not apply to school closures for preventative social distancing, but only applies if the school is closed due to a mandatory or precautionary order of quarantine or isolation issued by any of the entities noted above.
Employees do not have to apply for the emergency paid sick days. If, however, the employee needs Paid Family Leave and disability benefits, then the employee is required to apply using the standard process for such applications. The employee will need to include a copy of the order of quarantine or isolation with the application.
Employers who have questions about how to manage the expanded federal or state leave requirements or how these laws apply to their business should contact Tina Grimshaw, kgrimshaw@fglawllc.com, or any other attorney at the firm.
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