On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”) to provide some relief to employees as a result of the Coronavirus (“COVID-19”). This law will go into effect on April 1, 2020 and will expire on December 31, 2020.
The Act includes many provisions which apply to employers, such as paid sick leave for employees impacted by COVID-19 and those serving as caregivers for individuals with COVID-19. Indeed, there are two provisions providing leave to employees forced to miss work because of the COVID-19 outbreak: an emergency expansion of the Family Medical Leave Act (FMLA) and a new federal paid sick leave law. The Act is the first federal law requiring private employers to provide paid sick leave to employees. Importantly, not all private employers are covered, as the Act applies only to private employers with fewer than 500 employees. A summary of the most relevant provisions of the emergency expansion of the FMLA and the paid sick law are as follows:
On January 12, 2018, the Maryland General Assembly overrode Gov. Larry Hogan’s veto to pass the Maryland Healthy Working Families Act (the “Act”), and in so doing, Maryland became the ninth state in the country to require paid sick and safe leave for qualifying employees.
Pursuant to the Act, any business in Maryland with 15 or more employees during the preceding year, including part-time, full-time, temporary, and seasonal workers, must provide their workforce with paid sick leave. Maryland employers with 14 or fewer employees are also required, at a minimum, to provide employees with unpaid sick and safe leave.
The Act currently is scheduled to take effect as of February 12, 2018. However, on January 23, 2018, as a result of concerns expressed by various lawmakers that employers would not have a sufficient amount of time to come into compliance with various provisions of the Act, Senator Thomas Middleton, the chief sponsor of the law, introduced a bill that would delay enforcing requirements of the law until mid-April. Senator Middleton stated that the delay in enforcement would give labor officials the requisite time to draw up necessary regulations and to spread the word to companies that are affected. He also emphasized that he wanted to “hold harmless” companies that are figuring out the details of how to set up their sick leave programs, and that “ninety days should give the administration enough time to get a guide together.”
In 2015, Montgomery County implemented Maryland’s first paid sick and safe leave statute, The Earned Sick and Safe Leave Law, which becomes effective on October 1, 2016. The law applies to all employees that perform work in Montgomery County. Under the law, employees who work for employers with 5 or more employees earn sick and safe leave at a rate of one hour for every 30 hours of work in Montgomery County, up to 56 hours or approximately 7 days of leave per calendar year. Employees who work for employers with fewer than 5 employees must earn one hour for every 30 hours worked in Montgomery County, but only up to 32 hours or approximately 4.5 days per calendar year.
As has been seen in similar paid leave laws developing throughout the country, under Montgomery County’s statute leave can be used for (1) medical care of employee or employee’s family member; (2) closure of employer’s place of business or school/child care by order of a public official due to public health emergency; (3) care of a family member with a communicable disease that could jeopardize the health of others; or (4) obtaining medical or legal services for or participation in a proceeding related to domestic violence, sexual assault or stalking committed against the employee or the employee’s family member.
Similar to DC’s paid sick and safe leave law, employees must begin accruing leave on their first date of employment, but may be prohibited from using the leave during the 90-day initial probationary period. Employers must permit leave to be carried over from year to year (up to 56 hours), but can cap use of accrued and carried-over leave to 80 hours per calendar year. The law also requires employers to provide a written statement of available sick and safe leave to employees each time wages are paid.
Pursuant to this law, an employer must notify employees of their entitlement to leave by posting and in its written policies, usually the employee handbook. Although this may require some employers to implement a new policy, many employers may already have policies that meet these basic requirements. A general PTO policy that permits accrual of paid leave at the same or a greater rate and use of the paid leave for any reason, may simply need to be updated to encompass all of the permitted uses of leave, an anti-retaliation statement, and information about the employee’s rights to file a complaint. Employers also should ensure accrual is not prohibited. Policies must be carefully reviewed and revised, if necessary, to meet the qualifications of this law by or before October 1st.
This shift in the law is especially significant because of what it reflects for Maryland as a whole. Maryland’s Healthy Working Families Act has gained renewed momentum in light of Montgomery County’s law and a similar law currently being considered in Prince George’s County. The Act would similarly provide full-time employees up to 7 days of paid sick and safe leave and would, as it’s currently written, apply to all employers with 10 or more employees. Employers with 9 or fewer employees would have to provide unpaid leave. Although this proposed law has been introduced and reintroduced multiple times without success, there may be enough support in the state to push it through the Maryland government based on the implementation of one such law within the state already.
The D.C. City Council is introducing a bill that will give almost every employee in the nation’s capital 16 weeks of paid family leave to bond with an infant or an adopted child, to recover from an illness, recuperate from a military deployment, or to tend to an ill family member. If the proposed bill is passed, Washington D.C. will become the most generous place in the United States for an employee to take time off for family leave.
The legislation would more than double the length of any paid-leave program in the United States. In fact, only Rhode Island, New Jersey, and California guarantee paid family leave for working residents. Thus, D.C.’s plan is a big step toward matching policies that have already been enacted by some private employers and other countries.
Under the proposed legislation, employers would be required to pay into a city-managed fund on a per-employee basis. For those earning up to $52,000, the fund would pay 100 percent of the employee’s pay. The family and medical leave benefits would equal 100 percent of the eligible employee’s average weekly wages up to $1,000 per week. For employees who earn over $52,000 per year, the benefits would equal $1,000 plus 50 percent of the employee’s average earnings above that amount, up to a maximum benefit of $3,000 per week.
The proposed legislation would have a significant impact on employers of all sizes and the D.C. Chamber of Commerce raised concerns about the bill in a letter sent to Councilmember David Grosso – a co-sponsor of the proposed legislation. The Chamber of Commerce worries that the bill would have a negative impact on the local economy, stating that “the bill would be unprecedented and make the District of Columbia dangerously uncompetitive at a time when the District is trying to compete for every job it can get.”
The proposed legislation drastically changes D.C.’s current Family and Medical Leave law that permits a covered employee to use a total of 16 unpaid work weeks of family leave during any 24-month period. Given the significant financial impact that the proposed legislation will have on employers both big and small, this is an important piece of legislation for all D.C. employers to follow. If the legislation is passed, employers should implement a system to provide timely notice to its employees of their rights under the new law. A covered employer who violates the notice requirements will be assessed a civil penalty not to exceed $100 for each covered employee and $100 for each day that the covered employer fails to post the notice in a conspicuous place.
We will keep our readers apprised of the legislation as it moves through the City Council.