Updated Information on New Paid Leave Requirements
The United States Department of Labor (“DOL”) has issued new guidelines, clarifying in part how the Emergency Paid Sick Leave Act (“EPSL”) and the Emergency Family Medical Leave Expansion Act (“EFMLA”) will be implemented. Below is a summary clarifying some of your key questions and is based on the DOL’s new guidance. Both laws go into effect on April 1, 2020.
If your business closed its worksite due to lack of work or closure by federal, state, or local authority’s directive, are its employees entitled to EPSL or EFMLA?
No. If your business does not have work for its employees either due to business slowdown or due to a directive by federal, state or local government to stay at home or shelter in place, your business’s employees are not entitled to paid sick leave (EPSL) or expanded family and medical leave (EFMLA), but they may be eligible for unemployment insurance benefits.
If, after April 1, 2020, your business must shut down due to business slowdown or due to directive by federal, state or local authority, while some of its employees are on EPSL or EFMLA, are its employees eligible to continue to receive EPSL or EFMLA?
No. If your business must close while one or more of your employees are on EPSL or EFMLA, your business must pay for any paid sick leave or expanded family and medical leave its employees used before your business closed. As of the date your business closes its worksite, its employees are no longer entitled to paid sick leave or expanded family and medical leave. They, however, may be eligible for unemployment insurance benefits.
If your business continues to operate on or after April 1, 2020, but must make further lay-offs, are the laid off employees eligible for paid sick leave or expanded family and medical leave?
No. If your business furloughs or lays-off employees because it does not have enough work or business for them, they are not entitled to then take paid sick leave or expanded family and medical leave. However, they may be eligible for unemployment insurance benefits.
If your business closes its worksite on or after April 1, 2020 and tells its employees that it will reopen at some time in the future, are its employees eligible for paid sick leave or expanded family and medical leave?
No. The business’s employees are not eligible for EPSL or EFMLA while your business’s worksite is closed. However, the employees may be eligible for unemployment insurance benefits during the temporary closure.
If your business needs to reduce its employees’ scheduled work hours, are the employees eligible for paid sick leave or expanded family and medical leave for the hours that the employees are no longer scheduled to work?
No. If your business reduces its employees’ work hours because it does not have work for them to perform, your employees are not eligible to use paid sick leave or expanded family and medical leave for the hours that they are no longer scheduled to work. Employees may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents them from working the hours they are required to work. If they have a need to be absent for a COVID qualifying reason, the amount of leave to which they are entitled is computed based on their schedule before it was reduced.
Has the DOL created a notice regarding the EPSL and EFMLA and where does it need to be posted?
Yes. It can be found here: https://www.dol.gov/agencies/whd/pandemic. It must be posted in conspicuous places on the premises of your business where notices to employees are customarily posted, like an employee break room or an employee bulletin board.
Need Further Guidance?
The DOL is expected to publish additional guidance on the implementation of the EPSL and EFMLA in the upcoming weeks. We are still awaiting anticipated regulations regarding exemptions for businesses with fewer than 50 employees; however, these regulations have not yet been enacted.
We are continuing to review and post further information on these new laws. Please continue to watch for new developments, and if you have further questions interim, please contact Eileen Kennedy, Senior Attorney, Berliner Cohen LLP, at Eileen.Kennedy@berliner.com.
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Christine H. Long, Department Chair (408) 938-2516 |
Susan Bishop, Partner (408) 286-5800 |
Kim Flores, Partner
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Eileen Kennedy, Senior Attorney (408) 286-5800 |
Ghazaleh Modaressi Ghazaleh.modaressi@berliner.com (408) 286-5800 |
Aleshia White (408) 286-5800 |