COVID-19 LEGISLATION UPDATES
The expanded FMLA leave is available to eligible employees who cannot work (or telework) because their child's school or childcare service is closed due to COVID-19 emergency declared by a federal, state, or local authority. It is important to note that if an employee is able to telework and opts not to, they are NOT eligible for this expanded FMLA leave. The leave would be up to 12 weeks. The first two weeks would be unpaid. During this time, employers can allow employees to use accrued but unused leave time. However, they cannot require an employee to used their accrued but unused leave time. The following weeks, weeks 3 through 12, would be paid. The employer will be required to pay the employee 2/3 of his/her regular rate of pay.
There have been some questions about how to calculate pay for those who are commissioned employees. While we have not gotten specific direction in this new legislation, according to the Society for Human Resource Management (SHRM), when calculating leave pay employees should be paid what they normally would have been paid had they been working. If there is pay associated with obtaining specific goals or measurable targets, that pay would not be included in the calculation of the leave pay because those targets have not been met. However, if you normally calculate paid leave (vacation, PTO, etc) by including goal-based commissions, then you would need to include that in your calculation for the enhanced FMLA leave. So, if a commissioned employee gets paid vacation time that is an average salary that includes any target/goal-based commissions, then you would need to include commissions in your calculation for this enhanced FMLA. If you pay a flat rate for vacation time for commissioned employees, you would need to pay the flat rate during the enhanced FMLA as well. As we get more clarity on this calculation, we will update this blog. But, for now, it follows that the same type of logic that has been used in the past to calculate paid leave should apply to this paid leave.
The paid sick leave portion of the bill requires an employer to provide paid sick time for the following reasons:
1. Employee is subject to federal, state, or local quarantine or isolation related to COVID-19.
2. Employee has been advised by a health care provider to self-quarantine due to concerns about COVID-19.
3. Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
4. Employee is caring for an individual who is subject to numbers 1 or 2.
5. Employee is caring for a son or daughter whose school has been closed due to COVID-19 precautions.
6. Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.
Originally it was thought that the reason above had been excluded from paid sick leave. However, the final bill DOES include that portion.
That means, if someone is caring for a child who is out of school or daycare, they will receive both provisions. This is different than we had originally understood.
This paid sick leave is available to anyone who is employed as of April 2. If the employee is a full-time employee, he or she will be eligible for 80 hours of sick leave at his/her regular rate of pay. If he or she is a part-time employee, he or she will be eligible for an average number of hours (calculated by looking back for the last 6 months and averaging the hours worked each week) times 2 weeks.
There will be more clarification and information about the application of this bill as we go through the coming days. Keep checking our blog. We will update as we get more information.
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