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Updated March 20, 2020
On March 17, 2020, NPA’s Team GRC summarized H.R. 6201’s provisions affecting pawnbrokers as employers in terms of this legislation’s “emergency paid leave” under the Family and Medical Leave Act (FMLA). This Update shows changes to that prior information, which were made in the final bill enacted by Congress March 18, 2020. Changes are shown in red ink below.The FMLA amendments go into effect 15 days after enactment, which means on Thursday, April 2, 2020 and expire on December 31, 2020. This information below covers only Division C – the Emergency Family and Medical Leave Expansion Act.
FMLA’s Division C requires employers with fewer than 500 employees to provide all employees two weeks of “emergency” paid leave if the employee has a “qualifying need related to a public health emergency.” Current law applies to employers with 50 or more employees. Many pawnbrokers were not covered by the FMLA prior to this legislation. New definitions of “eligible employee” and “covered employer” will supersede the FMLA provisions you already know about.
What is a “qualified need related to a public health emergency”? H.R. 6201 limits its emergency FMLA paid leave to eligible employees who are unable to work or telework in order to care for the employee’s child if the child’s school or place of care has been closed due to the public health emergency. Division C only covers an emergency with respect to COVID-19 declared by a federal, state, or local authority. The final version of H.R. 6201 limits this paid leave to a son or daughter under 18 years of age if the child’s school or place of care has been closed, or if a compensated child-care provider is unavailable due to a public health emergency. This provision apparently does not apply if a non-compensated person is the child-care provider.
What will the amendments require? H.R. 6201 requires covered employers to provide up to ten weeks of paid leave to covered employees.
The first 10 days for which an employee takes the new “emergency” FMLA leave will be unpaid leave.
Employees (not employers) may elect to substitute accrued vacation leave, personal leave, or medical or sick leave to cover this 10-day, unpaid leave period.
Unless exempted under regulations issued by the Secretary of Labor, discussed below, employers “shall” provide paid leave for each day after the first ten (10) unpaid days up to the total required.
The total of required paid leave under H.R. 6201 will be ten weeks of qualifying paid emergency FMLA leave for covered employees.
Who qualifies as a “eligible employee”? H.R. 6201 expands the FMLA to reach employees that have been employed for at least 30 days. The FMLA formerly limited employees eligible for paid leave to those who have worked for at least 12 months and for at least 1,250 hours during the previous 12-month period. The employee must provide notice of their election to take unpaid and paid leave to the employer as is practicable.
H.R. 6201 requires employers to pay eligible employees according to this formula.
Division C’s emergency paid leave requires at least two-third of employee’s regular pay. The pay must reflect the number of hours a covered employee would be scheduled to work if there were no emergency. Paid leave is not required to be more than $200 a day and is limited to $10,000 aggregate for each employee.
Position Restorations following leaves taken under this emergency paid leave law. Employees of employers having 25 or more employees are entitled to restoration of their positions, except as provided in H.R. 6201. We hope to get more information on this issue soon.
H.R. 6201 provides regulatory authority to exempt small businesses from Division C’s emergency leave requirements (with fewer than 50 employees) if the vitality of the business could be jeopardized as a going concern. The Secretary of Labor will have authority to exempt employers with fewer than 50 employees whose businesses’ vitality will be jeopardized. We have no details on how this may work; we will watch for the regulations and keep NPA members up to date when they are issued. It is still unclear whether the new regulations will go into effect immediately or a later date.
Employers will be liable for violations of the FMLA if their companies meet the coverage test explained above.