February-March 2020 Government Affairs Update

Starting on April 1, emergency paid sick leave and expanded family and medical leave will be available to workers who are dealing with coronavirus illness and shutdowns. These provisions of the Families First Coronavirus Response Act (H.R. 6201) expire on Dec. 31, 2020.

Emergency Paid Sick Leave

Under this provision, full-time employees are eligible to take up to 80 hours of paid leave for one of the following reasons:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19.
  • The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis.
  • The employee is caring for an individual who has been advised to self-quarantine or is experiencing symptoms of COVID-19.
  • 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.
  • 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.

The paid sick leave would be available immediately no matter how long the employee has worked for their employer. Part-time employees will be eligible to take emergency paid sick leave on a prorated basis.

An employee’s pay while taking sick leave due to illness will be calculated on the employee’s regular rate and limited to $511/day and $5,110 in total. Leave taken to care for a child whose school or day care has closed will be 2/3 of the employee’s regular rate and limited to $200/day and $2,000 in total.

The final version of the law no longer requires the sick leave to be in addition to existing paid sick leave. However, the law still provides that “[a]n employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time under [the Act].”

Also, employers cannot require employees to find someone to cover their hours as a condition for taking paid sick time.

Emergency Family and Medical Leave Expansion

Eligibility to request and use family and medical leave now extends to any employee who has worked for their current employer for at least 30 consecutive calendar days. To qualify, the employee must

  • Need to care for a child who is younger than 18 whose school or place of care is closed or for a child whose childcare provider is unavailable due to a public health emergency, and
  • Be unable to work or telework because of their need to care for their child.

Employees can take the first 10 days of emergency family and medical leave as unpaid leave or substitute accrued leave for the unpaid portion. Employers cannot require an employee to use accrued leave before taking emergency family and medical leave.

Employers need to provide paid leave for the subsequent 10 weeks of leave that is capped at $200/day and $10,000 total. Further, employers need to make reasonable efforts to restore employees who return from leave to their same or equivalent positions. If those efforts fail, employers need to make reasonable efforts to contact employees if equivalent positions becomes available over the next year.

The Secretary of Labor has authority to exclude certain health care providers and emergency responders from coverage. Also, employers with fewer than 50 employees can request exemptions if complying would jeopardize the viability of their businesses.

Other Employment Provisions of the Law

The U.S. Department of Labor will provide a model notice for employers to use in advising employees about the availability of emergency paid sick leave and family and medical leave. When issued, employers must post the notice in a conspicuous place.

Private employers will receive payroll tax credits to cover the wages paid to employees who take emergency sick leave and family and medical leave. Public employers will not receive tax credits. IPMA-HR wrote a letter to the majority and minority leaders of the House and Senate highlighting the hardships that could result from this discrepancy.

Last, the law directs the Secretary of Labor to promulgate emergency temporary standards to protect health care workers under OSHA and to expand which hospitals and other medical facilities are subject to such standards.

 

House Committee Holds Hearing on the Healthy Families Act

The House Education & Labor Committee on March 11 heard testimony regarding the Healthy Families Act (H. R. 1784), which would require employers to provide at least seven days of paid sick leave per year. Currently, principal sponsor Rep. Rosa DeLauro (D-N.Y.) noted, more than 32 million American workers are not provided with paid sick leave.

Sen. Kristen Gillibrand (D-N.Y.) has introduced the similar Providing Americans Insured Days of Leave Act, and a House version that Senate bill also exists. The PAID Leave Act would

  • Provide 14 emergency paid sick days in the event of a public health emergency, including the coronavirus pandemic, that would be fully reimbursed by the federal government.
  • Provide workers with 12 weeks of emergency paid family and medical leave that would be fully reimbursed by the federal government.
  • Permanently ensure workers can accrue seven paid sick days each year.
  • Permanently enact a paid family and medical leave program.

 

Ruling That Prior Salary Cannot Be Cited to Defeat Equal Pay Act Claims Reaffirmed

On Feb. 27, 2020, the U.S. Court of Appeals for the Ninth Circuit reaffirmed its earlier decision in Yovino v. Rizo. finding that prior pay does not qualify as a job-related factor that can defeat an Equal Pay Act claim. The U.S. Supreme Court had vacated the original decision because the appeals court judge who wrote it died in the brief period between its writing and its issuance.

In remanding the case for reconsideration, the Supreme Court said that a federal judge is appointed for life but not for eternity. The reaffirmed appeals court decision may be appealed to the Supreme Court yet again, as federal courts are split over the central question of whether prior rate of pay is a “factor other than sex” that allows an employer to pay an employee of one sex less than an employee of a different sex for performing essentially the same work.

 

SCOTUS to Hear Case to Determine Constitutionality of the Affordable Care Act

The U.S. Supreme Court has agreed to review Texas v. United States, which in 2018 rendered the entirety of the Affordable Care Act unconstitutional and, therefore, void. The law remains in effect as appeals of the original decision by a federal district court judge in Texas proceed. Redubbed California v. Texas, the case is slated for oral arguments during the Supreme Court’s next term, which starts in October 2020.

For additional information, please contact IPMA-HR Executive Director Neil Reichenberg at nreichenberg@ipma-hr.org.

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