Confused about the Coronavirus Paid-Leave Mandate

Are you confused about the Coronavirus Paid-Leave Mandate?  You are not alone. It is very common when mandates are passed that additional commentary and clarifications will come. Keep your eyes open on this topic and consult an HR professional.

The U.S. Department of Labor (DOL) recently issued additional guidance for employers and workers about the paid-leave provisions in the coronavirus relief bill that was signed into law on March 18. The DOL plans to release additional information to clear up any confusion over the new mandate and to assist employers with their HR compliance efforts.

The Families First Coronavirus Response Act's (FFCRA's) emergency paid-leave provisions apply to certain public employers and businesses with fewer than 500 employees, but there are exceptions available for small businesses and companies that employ health care workers. The way in which to apply for the exceptions are not yet known.

Many employers will have to provide up to 80 hours of paid-sick-leave benefits if employees need leave to care for their own or someone else's coronavirus-related issues. The legislation also updates the Family and Medical Leave Act (FMLA) to provide workers with job-protected, paid leave when they can't work—either onsite or remotely—because their minor son's or daughter's school or child care service is closed due to the public health emergency. FFCRA also provides for payroll tax credits to employers to cover the cost of providing paid leave to employees under the sick-leave and family-leave programs.

Qualifying conditions – Employee is unable to work or telework because:
1) The employee is subject to a governmental quarantine or isolation order related to COVID-19 (attorneys told SHRM this week FAQs show it is not interpreted as shelter at home proclamation)
2) The employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns
3) The employee is experiencing symptoms of COVID-19 and seeking diagnosis
4) The employee is caring for an individual subject to a governmental quarantine/isolation order or health care provider recommendation

• Does not need to be a family member

5) The employee is caring for an eligible “son or daughter” under age 18 if school or place of care has been closed due to COVID-19 precautions
6) The employee is experiencing any other “substantially similar condition” specified by HHS Secretary

A few items to note from questions from our HR consulting clients:

• The leave is paid by the employer in addition to any company paid time off and you could be reimbursed as soon as on your quarterly taxes.
• If an employee requests this paid leave, you should pay the mandated leave first and supplement with company paid leave if you both agree, document request in writing with dates and proof doctor's name, article about child care provide closing etc.
• If the business is temporarily closed or employees laid off due to lack of work or shelter at home orders, this act doesn't apply so those employees would not be due any mandated leave.
• If your employee is available to work or to telework, this mandate doesn't apply.
• If your employee is available to work or to telework and is scared to work not due to their own illness, care of another person's illness, or doctor's orders due to high risk for coronavirus, this mandate doesn't apply.  However, you could choose to let them use available PTO, used future PTO that is not yet accrued, or grant them unpaid leave.

The paid-leave provisions will take effect April 1 and expire on Dec. 31. Although employers will face penalties for violations, the DOL announced a nonenforcement period for employers that make good-faith compliance efforts. Enforcement measures will begin April 18. The department will focus on HR compliance assistance until then and noted that "good faith" means "violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the department receives a written commitment from the employer to comply with the act in the future."

The DOL's first set of guidance includes a fact sheet for employees, a fact sheet for employers and a Q&A document. The department also provided model workplace poster for nonfederal employers and federal employers that are covered by the mandate.  Employers are required to distribute to employees ASAP by posting virtually, via email, or in your physical location.

We recommend that you consult with an Human Resources professional to stay on top of this and other HR compliance matters.