Construction Employers, Attorneys Await Details on Expanded Leave Provisions

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By KERRY SMITH, EDITOR, ST. LOUIS CONSTRUCTION NEWS AND REVIEW MAGAZINE

Just days after bipartisan passage of the Families First Coronavirus Response Act (HR 6201) in the 116th Congress, construction industry employers are grappling with what it means to them in terms of paid and unpaid leave obligations to their employees.

Associated General Contractors of America Director of Employment Policy and Practices Claiborne Guy said navigating the outbreak is no easy matter for employers of all sizes at this juncture. Details and guidance are still emerging in the days following President Trump’s authorization of the expanded family leave act on March 18.

“We know there is a lot of uncertainty and people need to be planning, even if they don’t know all the final definitions and requirements,” said Guy. “As an association, we will continue to provide as many relevant resources as we can to equip and assist employers during these uncertain times.”

Carl Lothman, counsel with Sandberg Phoenix and von Gontard in St. Louis, said the new act comes alongside the traditional Family and Medical Leave Act of 1993 while bringing a completely new benefit.

“The first part includes paid sick leave in six categories related to people directly affected by the COVID-19 virus,” said Lothman, noting that the act provides tax credits for employers offering qualified paid sick leave and paid family leave wages – subject to certain caps and limitations – to offset the cost of providing the paid leave. FCCRA requires covered employers, defined as those with fewer than 500 employees, to provide up to 80 hours of paid sick leave to eligible full-time employees and a prorated amount of paid leave to eligible part-time employees from April 1 through Dec. 31, 2020.

The six categories are:

  • The employee is subject to a COVID-19 federal, state or local quarantine or isolation order.
  • The employee has been advised by a healthcare provider to self-quarantine due to COVID-19 concerns.
  • The employee is experiencing COVID-19 symptoms and seeking medical diagnosis.
  • The employee is caring for an individual who’s subject to a quarantine or isolation order or who has been advised to self-quarantine. (The individual may or may not be a family member).
  • The employee is caring for a child (under age 18) whose school or place of care has been closed, or whose childcare provider is unavailable due to COVID-19 precautions.
  • The employee is experiencing any other substantially similar condition specified by the US Dept. of Health and Human Services, in consultation with the US Dept. of the Treasury and US Dept. of Labor.

Total paid leave, at the employer’s regular rate of pay, is capped at $511 per day and $5,110 total per employee for employees meeting qualifiers 1 through 3 above. If employees meet conditions 4 through 6 above, total paid leave (per employee) is capped at $200 per day and $2,000 in the aggregate. If an employee uses paid sick time for items 4 through 6 above, he or she is only entitled to two-thirds of his/her regular rate of pay, subject to the cap.

Greensfelder, Hemker & Gale Attorney Amy Blaisdell said construction industry employers have unique workforce concerns as they continue to work, especially on healthcare and infrastructural projects. “With respect to the Families First Act, a lot of these construction companies are continuing their operations exempt from some of the quarantine orders, so that takes them out of some of these provisions,” Blaisdell said, “but they’re trying to navigate the remaining provisions. There’s a question of whether employees are out of work due to a child in need, or whether they’re out of work because their employer doesn’t have the work to give them. How broadly the law is going to be interpreted remains to be seen.”

How the new leave act will impact those under multi-employer collective bargaining agreements is also evolving, according to Kathleen Hamilton, a partner with HeplerBroom. “The act says that employers will comply by contributing to a fund, plan or program from which employees can draw money,” Hamilton said. “I can imagine that in the coming weeks, bargaining efforts will be made to expand upon what is being provided in the act. Employers need to look to the DOL for future guidance, make sure they’re updating their PTO (paid time off) and FML plans and talking with their tax advisors to make sure that these agreements comply with the act and that any funds they contribute can be used by employees.”

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