In March and April 2020 as the COVID-19 public health crisis developed, the United States introduced new legislation and a number of financial schemes to support employers and their workforces. On March 18, 2020, the President signed into law H.R. 6201, Families First Coronavirus Response Act (FFCRA), which includes an appropriation of federal funds to enhance welfare assistance programs, supplement state unemployment insurance benefits, and provide certain tax credits, as well as two new laws that require employers to provide paid sick leave of up to two weeks, and protected paid leave for up to 12 weeks due to the impact of COVID-19 in certain circumstances.
First, under the Emergency Paid Sick Leave Act (EPSLA), which applies to employers with less than 500 employees with certain exceptions, covered employers must provide two weeks of paid sick leave to any employee unable to work or telework due to the following: (i.) government quarantine or isolation order related to COVID-19; (ii.) doctor’s advice to self-quarantine due to COVID-19 concerns; (iii.) employee experiencing symptoms of COVID-19 and seeking a medical diagnosis; (iv.) employee’s need to care for someone who is subject to a quarantine, isolation order, or doctor’s recommendation to self-quarantine; (v.) an employee’s need to care for a son or daughter who is home due to school or daycare closure related to COVID-19 concerns; or (vi.) employee experiencing any other substantially similar condition specified by the Secretary of Health and Human Services (HHS). Notably, under the EPLSA, covered employers may not require an employee to find a replacement and are also prohibited from requiring employees to first use any accrued paid leave under its own policies.
Second, under Emergency Family and Medical Leave Expansion Act (FMLA), which applies to employers with less than 500 employees with certain exceptions, covered employers must provide up to 12 weeks of protected leave to any eligible employee who is unable to work or telework due to a need for leave to care for a son or daughter under 18 if the school is closed, or the child care provider is unavailable, to due to a public health emergency. After the first 10 days of leave (which is unpaid but likely covered by the EPSLA), employers must pay 2/3 of an employee’s regular rate of pay for all normally scheduled hours per day for up to 12 weeks. For part-time employees, employers must pay the average number of scheduled hours in a two-week period, or if the part-time employee’s hours are variable, the hours scheduled per day by taking the average over the most recent six months. The maximum paid leave is $200 per day and $10,000 total per employee.
Beyond the foregoing, the United States has enacted financial assistance programs intended to provide relief to individuals and business through loans, tax relief and direct payments beginning with the Coronavirus Aid, Relief, and Economic Security Act (CARES). Notably, the CARES Act authorized an initial $349 billion in funding for the Paycheck Protection Program intended to support small businesses with funds to pay up to 8 weeks of payroll costs including benefits, as well as to pay interest on mortgages, rent, and utilities.
Employment data through April 2020 indicates the unemployment rate increased by 10.3 percent to 14.7 percent over the course a single month, reflecting the largest over-the-month increase based upon available data going back to January 1948. While employment fell sharply in all major industry sectors, the leisure and hospitality industries have seen particularly heavy job losses. During the pandemic, over 38.6 million have filed for unemployment benefits so far and current economic predictions indicate a real unemployment rate of 22.5%, just below the 25.6% peak unemployment rate during the Great Depression in the United States.
From lockdown to return to work
As lockdown restrictions are eased in the United States, employers are adjusting to the "new normal". Under the federal system in the United States, many states have begun to re-open and permit business to operate under a variety of restrictions based upon the type of business and perceived exposure risks. As restrictions are being lifted, however, employees and union groups are already expressing concern as the adequacy of workplace safety measures being put in place for returning workers. In an effort to provide guidance to employers seeking to re-open, the national agency Centres for Disease Control and Prevention (CDC) has issued Interim Guidance for Businesses and Employers Responding to the Coronavirus Disease 2019, which provides a general starting point for developing considerations for many industries and is available here >
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Author: Robert W. Hellner