COVID-19: Senate Update from Eaton Peabody

March 19, 2020

COVID-19: Senate Update

March 19, 2020

On March 18, 2020 the Families First Coronavirus Response Act was passed into law. The Act contains extensive provisions, including a number of employment and employee benefits related laws, a brief summary of which are provided below. If you have specific questions or concerns about how this act applies to you or your business, please contact our Employment Law group.

This update relates specifically to the newly passed federal law. If you have questions about Maine laws, unemployment eligibility in Maine, or general employer advice please review our earlier employer update or contact Sarah Newell or Matt Raynes with specific questions.

Importantly, it is crucial to convey to your employees that coverage of testing for COVID-19 must be provided at no cost to the consumer and that COVID-19 illness will be covered by two weeks of paid sick leave. It is in the interest of all employers and their continued business operations to ensure that sick employees stay home from work and anyone exhibiting symptoms should get tested immediately without fearing the cost of tests or the loss of income related to COVID-19. This includes diagnostic testing, costs of providers, urgent care center or emergency room visits for testing. Employers will receive a tax credit for paid sick leave under this bill. The Act also includes provisions relating to spending appropriations for the COVID-19 emergency, as well as nutrition waivers, and other budgetary effects. If you have employees who may be eligible for these programs, particularly while they may be out of work or working limited hours due to COVID-19, additional resources may be available to them.

The Emergency Family and Medical Leave Expansion Act requires all employers with fewer than 500 employees to provide employees who have been working for at least 30 days the right to take up to 12 weeks of job-protected FMLA leave to care for the employee’s child if the child’s school or place of care has been closed or is unavailable due to COVID-19

The first 10 days of FMLA time under this law may be unpaid, unless the employee elects to use other accrued paid time off. Employers may not force employees to use accrued paid time off. Following the first two weeks and for the duration of the FMLA eligible time off the employee will receive no less than two-thirds of the employee’s usual pay.

Emergency Paid Sick Leave Act

Employers with fewer than 500 employees and all government employers must provide all employees – full time and part time – two weeks of paid sick leave, paid at the employee’s regular rate of pay, for any of the following reasons:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
  5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
  6. The employee is 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 80 hours of pay and part-time employees are entitled to the average number of hours they would typically work in a two week period. Furthermore, employees who work under a multiemployer collective agreement must be provided with leave.

The two weeks of paid sick time is in addition to whatever paid sick time the employer already offered prior to the law being enacted, and employer may not require other accrued paid time off to be used before the mandated paid sick leave under this bill. The sick time mandated under this new law cannot carry over from one year to the next and must be available to all employees immediately, regardless of how long the employee has been employed for.

Additionally, employers will be required to post a notice, prepared by the Secretary of Labor, of the requirements of the act, once such notice becomes available.

The law comes with teeth – employers may not discriminate, discipline, or retaliate against employees who seek to take leave under this law, and willfully terminating an employee who tries to take leave under the law will result in penalties to the employer. Further, failure to pay sick leave will result in a violation for the Fair Labor Standards Act.

Emergency Unemployment Insurance Stabilization and Access Act of 2020

This Act provide states with substantial additional funding for unemployment benefits provided the state follows specific guidelines and rules. Employers should inform laid-off workers of their potential unemployment insurance eligibility.

Health Provision

Group health plans and health insurance insurers must provide coverage and not impose any cost sharing or prior authorizations for COVID-19 diagnosis products, office visits, urgent care center visits, and emergency room visits that result in an order for, or administration of, a diagnostic test. Further, there may not be any cost sharing for testing and testing services for those who are uninsured, covered by Medicare/Medicaid, CHIP, Tricare, veterans, federal civilians, or others not listed.

Tax Credits for Paid Sick and Paid Family and Medical Leave

 Employers, including self-employed individuals, also shall be eligible for a tax credit against the rate of tax imposed for each calendar quarter in an amount equal to 100% of the qualified sick leave and family leave wages paid by such employer with respect to such calendar quarter. The aggregate number of days taken into account for any calendar quarter shall not exceed the excess of 10, over the aggregate number of days so taken into account for all preceding calendar quarters.

© 2020 Eaton Peabody 
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