prepared by Katherine Bresline (with support by Olivia Lee) please see either with questions.
On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (the “Act”) into law. Included in the legislation is the Emergency Family and Medical Leave Expansion Act and the Emergency Sick Leave Act, both of which are applicable to B Lab because we have fewer than 500 employees. The Act is effective as of April 2, 2020 and the provisions described below sunset on December 31, 2020.
Under the Act, B Lab employees would receive up to two weeks paid sick leave for coronavirus-related reasons and under the expansion of FMLA, additional paid leave beyond two weeks would be limited to parents of children affected by school closures. The important thing to note is that any sick or leave pay that B Lab pays that could fall under the Act will entitle B Lab to a payroll tax credit.
I’ve provided a summary of the law below, but here is a high-level overview as to how it applies to B Lab together with our current policies and procedures:
1. Sick Leave. When an employee is anticipating a sick leave, we encourage that all outstanding vacation and paid time off days are used in the two week period before our short term disability (“STD”) kicks in. Under the Act, we are required to provide two weeks paid sick leave for coronavirus-related leave and are prohibited from encouraging employees to use any other leave in that period.
2. FMLA. When an eligible employee (one that’s been with B Lab for 12 months and at least 1,250 hours) goes out on FMLA for medical reasons, the leave is unpaid and we encourage the employee to utilize STD when possible (example, if the leave is medical). However, under the Act, because the expanded medical leave is limited to situations in which an employee is taking care of a child because the school/child care is closed and mandates paid leave, B Lab, and not our STD carrier, is responsible. The Act also broadens the scope of covered employees to those that have been with us for 30 days.
Overview of the Act:
A. Paid Sick Leave. B Lab is required to provide to each employee (regardless of length of tenure) paid sick time to the extent that the employee is unable to work, either onsite or remotely, due to a need for leave because the employee:
is subject to a Federal, State, or local quarantine or isolation order related to COVID–19;
has been advised by a health care provider to self-quarantine due to concerns related to COVID–19;
is experiencing symptoms of COVID–19 and seeking a medical diagnosis;
is caring for an individual who is subject to a Federal, State, or local quarantine; or
is caring for a son or daughter 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 has been closed.
Full time employees receive 80 hours of paid sick leave and part time employees receive a number of hours based on the average hours worked over two weeks. The cap for: (1) an individual that is subject to quarantine is $511 per day and $5,110 in the aggregate; and (2) a caretaker is $200 per day and $2,000 in the aggregate.
This paid sick leave is in addition to any sick pay offered by B Lab and we cannot require an employee to first use another source of paid leave. Please note that we are required to post a notice to alert employees of the requirement to provide paid sick leave. The Department of Labor will provide a form notice this week which we can then post on Slack.
B. Emergency Family and Medical Leave Expansion Act. Under a temporary expansion of the Family and Medical Leave Act (“FMLA”) B Lab is required to:
Allow FMLA leave (up to 12 weeks) to provide an employee that has been with B Lab for over 30 days with up to 12 weeks of job-protected leave if such employee is unable to work, either onsite or remotely, because their minor child’s school or child care service is closed due to coronavirus.
The first 10 days of leave are unpaid although an employee can opt to substitute accrued vacation, personal or sick leave and this appears to include the sick leave referenced above. Please note that B Lab cannot require an employee to use any accrued vacation or leave in this 10 day period. For the remaining 10 weeks, an employee must receive two-thirds of their regular rate of pay for the number of hours scheduled to work, which will be capped at $200 a day and $10,000 total.
3. Payroll Tax Credits. If B Lab provides paid sick or paid family leave to employees for coronavirus purposes then we will be entitled to a payroll tax credit for each calendar quarter in an amount equal to 100% of the qualified paid sick and family leave wages paid by B Lab, not to exceed $200 per day and $10,000 aggregate per employee.