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Congress Proposes Expansion to Paid Sick Time and Leave

Coronavirus Relief Act to be signed by President March 19. Bigger direct aid package up next for week of March 23.

New Law Expands Paid Sick Time and Leave
US Capitol Building, Washington DC

New legislation, signed into law on March 18, places significant new responsibilities on small- and medium-sized employers, including a large portion of the remodeling and home improvement industry, as the nation copes with growing numbers of sick and those who are quarantined due to suspected illness. In return employers are set to receive aid in the form of tax credits to cover this cost.

The Families First Coronavirus Response Act (FFCRA) requires employers of fewer than 500 people to add two weeks of sick pay to full-time employees on top of whatever they currently offer. In addition, the expected law will include an expansion of the Family and Medical Leave Act to allow for up to 12 weeks of “public health emergency leave” in order to comply with a recommendation or order of a public health official, to care for a family member, and to care for children under age 18 whose schools have been closed.

The legislation would be critical to helping small businesses, like the cast-in-place concrete contractor found throughout this country, continue operations through a period of great uncertainty. A number of measures contemplated by state, local, and federal government officials could severely curb the operation of “nonessential” businesses. Those actions have not been taken, but industry business leaders are discussing the implications.

Significantly, the act provides the U.S. Department of Labor with the authority to issue regulations “for good cause” to exempt small businesses with fewer than 50 employees when the imposition harms “the viability of the business as a going concern.” No guidance from the DOL has been issued as of yet.

The emergency provisions of the law would stay in place through the end of 2020. When signed by the President, the law goes into effect 15 days after enactment or April 2, 2020.

The following summary of the FFCRA, prior to Senate ratification and enactment, comes from the DeWitt law firm, www.dewittllp.com. You can read their full post here.

Emergency Paid Sick Leave – Employer Obligations

Covered employers are required to provide all of their employees with a new amount of paid sick leave for the following purposes, through December 31, 2020:  

  • To self-isolate because the employee is diagnosed with “coronavirus” (defined as “SARS-CoV-2 or another coronavirus with pandemic potential”);
  • To obtain a medical diagnosis or care if such employee is experiencing the symptoms of coronavirus;
  • To comply with a recommendation or order by a public official with jurisdiction or a health care provider on the basis that the physical presence of the employee on the job would jeopardize the health of others because of: a) the exposure of the employee to coronavirus; or b) exhibition of symptoms of coronavirus by the employee;
  • To care for or assist a family member of the employee: a) who is self-isolating because the family member has been diagnosed with coronavirus or is experiencing symptoms of coronavirus and needs to obtain diagnosis or care; b) who is the subject of an order/recommendation from a public health official or health care provider to stay out of the community because the family member has been exposed to and/or is exhibiting symptoms of the coronavirus; and
  • To care for the child(ren) of the employee if his/her/their “school or place of care has been closed, or the child care provider of such child is unavailable, due to coronavirus.”
  • Amount of Paid Sick Leave.  Full-time employees of covered employers are entitled to up to 80 hours of emergency paid sick leave; part-time employees of covered employers are entitled to an amount of emergency paid sick leave up to the average number of hours they work over a two-week period.  Employees are able to take this leave regardless of the length of their service with their current employer.   

Level of Compensation Required for Paid Sick Leave.  Covered employers are required to pay every employee who takes emergency paid sick leave at a rate of compensation no less than the employee’s “regular rate” of pay (as that term is defined under the Fair Labor Standards Act (“FLSA”)) for leave taken for any of the first three reasons identified above (i.e., for the employee’s own coronavirus-related conditions).  For every employee who takes emergency paid sick leave for the fourth and fifth reasons identified above (i.e., for the care of sick family members and/or children), covered employers are required to pay the employee at a rate of compensation no less than two-thirds of his or her “regular rate” of pay.     

Emergency Paid Leave Adds to any Leave Already Offered by Covered Employers.  Unlike many other paid/unpaid leave laws enacted by various state and local governments, covered employers must provide emergency paid sick leave under the FFCRA in addition to any other paid time off the employers may already offer to their employees.  The FFCRA specifically provides that employers “may not change” their current paid leave policies – i.e., employers may not reduce the amount of leave ordinarily available under their own policies – in order to avoid the impact of the law.  In addition, employers may not require employees to take/exhaust any of their employer-provided leave time before taking emergency paid sick leave time under the FFCRA.  Employers also may not require employees who take emergency paid sick leave to find any replacement employees to take the absent employees’ place at work during their absence.  

Emergency Family and Medical Leave Expansion Act – Employer Obligations

Pursuant to the FFCRA, eligible employees will be able to take up to 12 weeks of “public health emergency leave” in the following circumstances: 

  • To comply with a recommendation or order of a public health official who has appropriate jurisdiction or a health care provider on the basis that a) the “physical presence of the employee on the job would jeopardize the health of others” because the employee has been exposed to coronavirus or exhibited symptoms, and b) the “employee is unable to both perform the functions of the position of such employee and comply with such recommendation or order”;
  • To care for a family member with respect to whom a public health official having jurisdiction or a health care provider “makes a determination that the presence of the family member in the community would jeopardize the health of other individuals in the community because of” the exposure of the family member to coronavirus or exhibition of symptoms by that family member of coronavirus; and
  • To care for their child(ren) (under age 18) if their child(ren)’s school or place of care has been closed, or their child(ren)’s child care provider is unavailable, due to a public health emergency.

Unpaid Leave for 14 Days.  According to the FFCRA, covered employers may choose not to pay an employee for the first fourteen (14) days of his or her public health emergency leave.  Just as under the previously established portion of the FMLA, employees may choose to substitute any accrued vacation or sick time they may have during the unpaid portion of their leave; however, covered employers may not require employees to use such paid time during the emergency leave.  On the other hand, it appears very likely that the emergency paid leave allotment provided through the FFCRA (and outlined in the first section above) can be substituted for the first two weeks of (otherwise unpaid) public health emergency leave.   

Paid Leave Beyond 14 Days.  Critically, if an employee continues to be eligible for and continues to take public health emergency leave in excess of that first fourteen-day period, covered employers are required to provide the employee with paid leave for the duration of the qualifying leave.  This paid leave must consist of an amount of pay that is not less than two-thirds of an employee’s “regular rate” of pay (per the FLSA) for “the number of hours the employee would otherwise be normally scheduled to work.”  Please note that these rules are slightly modified for employees who have schedules that vary from week to week.             

Employee Eligibility.  A much larger number of employees will be eligible for this leave than are currently eligible for the other types of leave provided by the FMLA.  In particular, employees are eligible simply if they have been employed by their current employer for a minimum of thirty (30) calendar days.

Employers That Must Comply.  The obligation to provide this new public health emergency leave applies to all employers with fewer than 500 employees.  Consequently, even employers with fewer than fifty employees, who, until now did not need to comply with the leave provisions of the FMLA, will need to become familiar with and correctly administer this new bucket of leave.

Please note, however, that the FFCRA also provides the U.S. Department of Labor with the authority to issue regulations “for good cause” to: 1) prohibit “certain health care providers and emergency responders” from taking public health emergency leave; and/or 2) “exempt small businesses with fewer than 50 employees … when the imposition of requirements would jeopardize the viability of the business as a going concern.”  To date, no such regulations have been issued, but we will try to provide updated information on the potential exemptions as soon as they are.

The Concrete Foundations Association is advancing opportunities during this time for its members to be focused on this rapidly-changing environment of regulations, laws and policies. Information is available in a new webinar series for members offered on Wednesday’s beginning March 25th and extending for the next four weeks. Webinars begin at 12:30 pm Eastern for an hour. For more information, contact CFA Executive Director, James Baty.

Original version of this article offered by Qualified Remodeler magazine.

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Concrete FACTS, a publication of the Concrete Foundations Association, is THE voice for residential concrete industry news, market intelligence, business strategies, technical solutions, product information, and other resources for professionals in the cast-in-place concrete industry. Subscriptions to Concrete FACTS is available to anyone involved or interested in the residential concrete industry as a service to your industry. Please contact CFA Headquarters to find out more about your free subscription or Email Us