By: Celia J. Collins
Congress allowed mandatory FFCRA leave to expire on December 31, 2020 but extended the payroll tax credits for employers covered by the Act who voluntarily continued providing the leave in compliance with the language of the FFCRA through March 30, 2021. One component of Biden’s American Rescue Plan is to re-institute and extend mandatory paid sick leave and emergency FMLA under the FFCRA until September 30, 2021. He would also propose expanding it to cover all employers including those with more than 500 employees. Pursuant to the proposal, employers with less than 500 employees would continue to be eligible for the payroll tax credit to cover FFCRA leave paid. Employers with more than 500 would not be entitled to the credit. Unlike the 2020 Act, state and local governmental employers would be entitled to the credit. The leave would be for the same COVID related absences as last year’s Act, but would also cover absences to obtain a vaccine or recover from symptoms from the vaccine. The new proposal would not allow employers to exempt health care workers and first responders from eligibility for the leave. It would also remove the allowed exemption for certain employers with less than 50 employees. There is already talk of splitting up the parts of the Biden plan and considering them in separate components. It is likely that this proposal would be in early consideration by Congress. Whether or not it passes or in what final form it might pass remains to be seen. If it does pass expect a very short time between the passage and effective date – last year it was less than 2 weeks.
By: Celia J. Collins
Effective Date 4/2/2020 (expires 12/31/2020)
EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT
- Less than 500 employees (Department of Labor has authority to issue regulations exempting employers with less than 50 employees whose business viability may be jeopardized by compliance.)
- Full and part-time employees employed 30 calendar days (but Department of Labor has authority to exclude certain health care workers and first responders from the definition of employee.)
Unable to work or telework due to need for leave to care for a son or daughter because daycare or school is closed, or care provider is unavailable due to COVID issues. (Provider defined as caregiver who is regularly compensated so would not apply to Grandparents or other babysitters who are not paid for their services.)
First 10 days unpaid, after 10 days 2/3 regular rate up to $200 per day.
Return to Work
Employee must be returned to prior position. (exception for Employers with less than 25 employees if employee’s position eliminated due to situation and reasonable efforts to offer equivalent position fail. Must make reasonable efforts to contact employee if equivalent position becomes available within 12 months.)
Same as FMLA but Employers with less than 50 employees are exempt from civil actions for violations.
EMERGENCY PAID SICK LEAVE ACT
- Less than 500 employees (Department of Labor has authority to issue regulations exempting employers with less than 50 employees whose business viability would be jeopardized by compliance.
- Any full or part time employee regardless of length of employment.
- Department of Labor has authority to exclude certain health care providers and emergency responders from the definition of eligible employees.
Unable to work or telework because:
- Subject to Federal, State or local quarantine or isolation order due to COVID.
- Advised by healthcare provider to self-quarantine due to COVID concerns.
- Experiencing symptoms of COVID and seeking diagnosis.
- Caring for an individual quarantined or isolated by government or order or by their physician.
- Caring for their son or daughter because school or daycare is closed or childcare provider unavailable due to COVID concerns.
- Experiencing other substantially similar conditions specified by Federal agencies.
Employer of healthcare providers or emergency responders may exclude those employees.
- Up to 80 hours for full-time employees and average hours worked over two weeks for part-time.
- Regular pay rate up to $511 per day for personal health; two-thirds (2/3) regular rate of pay up to $200 when absence to care for others.
- Cannot require employee to use other accrued paid leave prior to this leave.
- Department of Labor to issue guidelines within 15 days from enactment (April 2, 2020.)
Notice Posting Requirement
Employers must post Department of Labor approved notice to be published by Department of Labor 7 days after enactment (March 25, 2020.)
Employee who takes leave under Act or files a complaint relating to act is protected from retaliation.
Liability for failure to comply or wrongful termination – same as FLSA, double damages for willful conduct and attorney fees.
By: Celia Collins
Chair of the Employment & Labor Department
The Alabama Department of Labor announced Monday that it has temporarily eased qualifying criteria to allow individuals off work due to COVID issues to immediately receive unemployment benefits. Qualifying reasons include furlough, quarantine by medical professional or government agency (not applicable to self-quarantine), sent home without pay due to employer COVID concerns, diagnosed with COVID or caring for a family member diagnosed with COVID.
The requirement that the individual be ready, willing and able to work and actively seeking employment is waived. There is no waiting period. Claims can be filed beginning March 23, 2020.
Employees receiving paid leave, sick pay or vacation pay during a COVID related absence are not eligible for unemployment benefits.
During the 2019 legislative session, the Alabama Senate passed a bill legalizing medical marijuana in the state. The Alabama House was reluctant to approve the new law without additional research and through compromise a joint proposal was reached establishing a medical marijuana study commission to research the issue, collect expert and public opinion and review the laws of states which have already legalized medical marijuana. The compromise bill was signed into law by the Governor in June and the commission was given 6 months to accomplish their task and present a report and proposed legislation to the legislature. The report and draft bill were submitted on December 20 and recommended the legalization of marijuana for certain medical conditions under the strong regulation of a new agency, the Alabama Cannabis Commission. The 72 page proposed bill will be introduced in the upcoming legislative section.
Of interest to Alabama Employers is that the proposed bill allows Employers to refuse to permit or accommodate the possession or use of medical cannabis or modify job duties to accommodate use. It expressly allows Employers to refuse to hire or discipline an employee because of possession or use of medical marijuana and allows Employers to establish and enforce drug testing policies and drug free workplace programs. Finally, the proposed bill provides that employees suffering a work injury while using medical cannabis are ineligible for worker’s compensation benefits if the injury was caused by the employee’s action or inaction.
Whether this bill passes in the upcoming months or a revised bill remains to be seen. Stay tuned.
By: Attorney Celia Collins