😮📢Feds introduce legislation mandating paid sick leave for Coronavirus

You read it here first.

Or, maybe second, because Cristina Marcos at TheHill (here) had the scoop on Friday evening:

The bill unveiled by Rep. Rosa DeLauro (D-Conn.) and Sen. Patty Murray (D-Wash.) would mandate all employers to let workers accrue seven days of paid sick leave and immediately provide 14 additional days when there is a public health emergency.

According to this press release, this bill would also ensure that paid sick leave covers days in the following situations:

• when a child’s school closes due to a public health emergency,
• when an employer closes due to public health emergency, or
• if an employee or a family member is quarantined or isolated due to a public health emergency.

So, no, this isn’t limited to Coronavirus. Also, this isn’t standalone legislation. Instead, it is part of another piece of pending legislation called the Healthy Families Act. Ms. DeLauro and Ms. Murray first introduced their Healthy Families Act in 2004, and have reintroduced it without success in every Congress since. And since GovTrack gave the Healthy Families Act a three percent chance of passage — before the latest change — this is beginning to feel a little clickbait-y.

So, let’s try to bring it home with some wage and hour tips if your business closes due to the Coronavirus.

Family and Medical Leave Act

If the office closes for a day or two — like a snow day — and the employee would have otherwise taken the entire week off on FMLA leave, then you can charge an FMLA day just the same. If, however, your employee is using FMLA leave in increments of less than one week, the missed day will not count against the employee’s FMLA entitlement unless you expect that employee to come to work that day.

But, if you don’t expect employees to report for work for one or more weeks, the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement. 

For more on the FMLA and pandemics, check out this resource from the DOL.

Fair Labor Standards Act

Non-exempt employees only get paid for hours worked. Therefore, if the office closes and the non-exempt employee does not work, the employee does not get paid. However, if that employee works remotely, then the employee should get paid for that time. So, ensure that you either: (a) instruct your non-exempt employees not to work remotely; or (b) remind your non-exempt employees who work remotely to track their time accurately. [Note: if a non-exempt in the first category ignores your instruction not to work remotely, you still have to pay that employee. However, you can also discipline that employee too]. Additionally, if a non-exempt employee is required to remain “on-call,” you must pay that non-exempt employee (unless the employee can use that time for their benefit).

Exempt employees who performed any work during the workweek in which the office is closed for a few days get paid their full wages for the week. If the exempt employee has accrued some paid time off, you may require the exempt employee to use PTO for those days. However, if the exempt employee has no accrued PTO, you cannot dock pay. Deducting an exempt employee’s wages may convert that employee’s status to non-exempt, and expose you to liability for overtime. But, if an exempt employee does not work for an entire workweek during a temporary closure, the employer can elect not to pay them for that workweek.

For more on the FMLA and pandemics, check out this resource from the DOL.