In the early morning hours of March 14, 2020, the U.S. House of Representatives passed a bill to address concerns related to the spread of COVID-19 (the “Bill”). The Senate is expected to consider the Bill shortly, and according to media reports, the Bill has the Trump Administration’s support. Our summary below highlights provisions of the Bill related to leave. This summary provides information regarding how the bill stands currently, but language changes or substantive amendments may still occur. We will continue to monitor the Bill as it progresses through the legislative process and update this post accordingly.
UPDATE: Click here to read our update on revisions made to the Bill.
Note at the outset that, as the Bill stands now, the leave provisions pertain only to employers with fewer than 500 employees.
Paid Sick Time
The Bill establishes the Emergency Paid Sick Leave Act (the “Act”). The Act is effective not later than fifteen (15) days after the date of enactment and expires December 31, 2020. The Act applies to an employer that, in the context of private entities, employs fewer than 500 employees, and, in the context of public agencies or any non-private entity or individual, employs one (1) or more employees.
- Overview:
- Paid sick time under the Act is available upon enactment regardless of how long an employee has been employed by an employer.
- Full-time employees are entitled to eighty (80) hours of paid sick time.
- Part-time employees are entitled to paid sick time equal to the number of hours the employees work, on average, over a two (2) week period.
- Paid sick time shall not carry over from one year to the next.
- Paid sick time shall cease beginning with the employee’s next scheduled shift immediately following the termination of the need for the paid sick leave.
- If an employer already provides paid leave, paid sick time provided for by the Act is in addition to such paid leave and the employer may not change such paid leave on or after enactment of the Act to avoid providing both the previously provided paid leave and the paid sick leave provided by the Act.
- Paid sick time may be used for any of the following reasons:
- For an employee to self-isolate due to a coronavirus diagnosis;
- For an employee to obtain a medical diagnosis or care if the employee is experiencing symptoms;
- To comply with recommendations or orders from a public official having jurisdiction or a healthcare provider because the employee’s physical presence would jeopardize the health of others due to the contraction of or exposure to COVID-19, or exhibition of COVID-19-like symptoms;
- To care for a Family Member who has received a recommendation or order described immediately above;
- For an employee to care for or assist a Family Member who is self-isolating because the Family Member has been diagnosed with or is experiencing symptoms of coronavirus;
- To care for a child whose place of school or care has been closed or is unavailable due to coronavirus;
- *A “Family Member” is a parent, spouse, or child of an employee, or a sibling, next of kin, or a grandparent/grandchild of an employee who is a) a pregnant woman, b) a senior citizen, or c) an individual with a disability.
- Calculation of paid sick time:
- Calculation of rate of pay for paid sick time:
- Paid sick time shall be not less than the greater of:
- An employee’s regular rate of pay under the FLSA;
- The minimum wage rate currently in effect under the FLSA;
- The minimum wage rate in effect in the applicable state or locality (whichever is greater) in which the employee is employed.
- For paid sick time used to care for Family Members, an employee’s required compensation is two-thirds (2/3) of the above described amount.
- Paid sick time shall be not less than the greater of:
- Calculation of hours worked for part-time employees:
- For purposes of calculating the number of hours worked for part-time employees, an employer that is unable to determine with certainty the number of hours the employee would have worked absent Public Health Emergency Leave, shall calculate the employee’s leave as follows:
- The average number of hours the employee was scheduled to work per-day over the six (6) month period ending on the date the employee takes Public Health Emergency Leave (including hours for which the employee took leave of any type);
- If the employee did not work over such period, the reasonable expectation of the employee, at the time of hiring, as to the number of hours the employee would work per day shall be used.
- Notice:
- Employers shall post and keep posted a notice, to be prepared by the Secretary of Labor, describing the requirements of the Act.
- After the first workday (or portion thereof) an employee receives paid sick time under the Act, an employer may require the employee to follow a reasonable notice procedure to continue receiving paid sick time.
- Miscellaneous provisions related to paid sick time:
- An employer may not require employees to find replacement employees before taking paid sick leave.
- An employer may not require an employee to use other paid leave provided by the employer before using the paid sick leave.
- Employers may not discharge, discipline, or discriminate against employees who take leave provided by the Act, or file a complaint, or institute, cause to be instituted, or participate in any proceeding under the Act.
- Failure to abide by the provisions in the Act is considered a failure to pay minimum wages as provided by the FLSA, subjecting an employer to penalties provided for under the FLSA (and possibly penalties for willful violations of the FLSA).
- For purposes of calculating the number of hours worked for part-time employees, an employer that is unable to determine with certainty the number of hours the employee would have worked absent Public Health Emergency Leave, shall calculate the employee’s leave as follows:
- Calculation of rate of pay for paid sick time:
Amendments to the FMLA (Public Health Emergency Leave)
The Bill’s amendments to the FMLA become effective not later than fifteen (15) days following enactment and expire December 31, 2020. The Bill amends the FMLA as follows:
- Employers must provide employees with up to twelve (12) weeks of paid leave for a coronavirus-related emergency declared by a Federal, State, or local authority (referred to herein as “Public Health Emergency Leave”), including leave:
- To comply with recommendations or orders from a public official having jurisdiction or a healthcare provider because the employee’s physical presence would jeopardize the health of others due to the contraction of or exposure to COVID-19, or exhibition of COVID-19-like symptoms;
- To care for a Family Member who has received a recommendation or order described immediately above;
- To care for a son or daughter under eighteen (18) years of age if the son or daughter’s school or place of care has been closed (or is unavailable) due to a public health emergency.
- However, Public Health Emergency Leave need not be paid during the first fourteen (14) days for which an employee takes such leave (but the employee may choose to use accrued paid leave), but Public Health Emergency Leave must be paid for each day of leave the employee takes after the initial fourteen (14) days.
- Varied definitions:
- “Eligible Employees” are those who have been employed by an employer for at least thirty (30) days.
- An “Employer” is any person who employs fewer than 500 employees.
- A “Parent” is a biological, foster, adoptive, or step-parent of an employee, a parent-in-law, parent of a domestic partner, or person in loco parentis to the employee.
- A “Family Member” is a parent, spouse, or child (under age eighteen (18)) of an employee, or children of the employee over age eighteen (18), an employee’s next of kin, or the grandparent/grandchild of an employee who is a) a pregnant woman, b) a senior citizen, or c) an individual with a disability.
- Paid leave calculation:
- Paid leave shall generally be calculated based on an amount not less than two-thirds (2/3) of an employee’s regular rate of pay under the FLSA and the number of hours an employee would otherwise be normally scheduled to work.
- For purposes of calculating the number of hours worked, an employee whose employer is unable to determine with certainty the number of hours the employee would have worked absent Public Health Emergency Leave, the employer shall calculate the employee’s leave as follows:
- The average number of hours the employee was scheduled to work per-day over the six (6) month period ending on the date the employee takes Public Health Emergency Leave (including hours for which the employee took leave of any type);
- If the employee did not work over such period, the reasonable expectation of the employee, at the time of hiring, as to the number of hours the employee would work per day shall be used.
- Miscellaneous provisions related to Public Health Emergency Leave:
- Employees may elect (but employer’s cannot require) to substitute accrued paid leave for Public Health Emergency Leave.
- Employees needing to take Public Health Emergency Leave must provide employers with notice as is practicable.
- Employers employing fewer than twenty-five (25) employees are not required to restore an employee to their pre-Public Health Emergency Leave position if the position no longer exists because of economic or other conditions caused by the public health crisis, if the employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held prior to commencing the leave.
- Employers employing twenty-five (25) or more employees must restore employees taking Public Health Emergency Leave to their pre-leave or equivalent positions.
Tax Benefits
- Employers are eligible to receive certain tax benefits for the paid sick leave and paid family and medical leave benefits provided to employees.
Health Insurance Benefits
Insurance issuers offering group or individual health coverage shall not impose any cost sharing (including deductibles, copayments, and coinsurance), prior authorization, or other medical management requirements for:
- In vitro diagnostic products for the detection of SARS-CoV-2 and COVID-19 that are approved, cleared, or authorized by the FDA;
- Items and services furnished during healthcare provider office visits, urgent center visits, and emergency room visits for purposes related to the provision of or determination of whether in vitro diagnostic products are necessary.
- Partner
Kevin is co-chair of the firm’s labor and employment team and co-chair of the firm’s Retail and Consumer Products Industry practice group. He has a national practice that focuses on complex employment litigation, employment ...
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- mask
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- Meal and Rest Breaks
- meal breaks
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- New York Law
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- News & Events
- Ninth Circuit
- NLRA
- NLRB
- NLRB Poster
- NLRB; NLRA; Labor Law; Union; Collective Bargaining; Workplace Rights
- NLRB; Property Rights; Misclassification
- NLRB; Union; Collective Bargaining Agreement
- No-Poach Agreements
- No-Rehire
- Noah’s Ark
- Noel Canning
- non-binary
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- Notice 2010-84
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- OFCCP Developments
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- Off Duty Conduct
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- OLMS
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- Ondray Harris
- Ondray T. Harris
- Online Accessibility
- Opinion Letters
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- Oregon
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- OSHA
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- PAGA
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- paid time off
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- Patent
- Patient Protection and Affordable Care Act
- Patricia Shiu
- Pattern and Practice
- Paulsen v. Renaissance Equity Holdings
- Pay
- Pay and Promotions
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- pay disclosure
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- Pay Reporting
- pay scale
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- Pay Transparency
- Pay/Compensation
- Paycheck Deductions
- Paycheck Fairness Act
- Paycheck Protection Program
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- Payroll Debit Cards
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- PBGC
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- PCC Structurals
- PCORI
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- Penalties
- Penalty
- Pennsylvania
- Pennsylvania Minimum Wage Act
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- Peoplemark
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- Perfectly Clear Doctrine
- Perfectly Clear Successor
- Performance and Accountability Report
- Period of Restoration
- Personal Jurisdiction
- Personal Jurisdiction; FLSA; Class Actions; Collective Action; General Jurisdiction; Specific Jurisdiction; Rule 23
- Personnel Policies
- Personnel Records
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- Persuader Agreements
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- Peter B. Robb
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- Pizza Hut
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- POWADA
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- Race Discrimination
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- Range
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- Reasonable Accommodation
- Reasonable Accommodations
- Recess Appointments
- Recordkeeping
- recruiting
- Reduction-in-Force
- Register Guard
- Regular Rate
- Regular Rate of Pay
- Regulation
- Regulations
- Regulatory Compliance
- Rehabilitation Act
- Reilly Moore
- Reimbursement
- Reimbursements
- release
- Religion
- Religious Accommodation
- Religious accommodation; Title VII; SCOTUS; Supreme Court; Third Circuit
- Religious Accommodations
- Religious Beliefs
- Religious Discrimination
- Religious Freedom Restoration Act
- Religious Institutions
- remedies
- Remote Work
- remote workforce
- Reopen Workplace
- Reopening Business
- Reopening Workplace
- Repeal
- report
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- Representation Election
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- Representation Fairness Restoration Act
- Reprisal
- Reproductive Loss Event
- Reproductive Loss Leave
- Reproductive Rights
- Rescind
- RESPECT Act
- rest breaks
- Restaurant
- Restaurant Industry
- Restaurants
- Restoring Balance and Fairness to the National Labor Relations Board
- restriction
- Restrictive Covenants
- Restrictive Covenants Act
- Retail
- Retail Litigation Center
- Retaliation
- Retirement Plans
- Retirement Savings
- Return to Work
- Revenue Procedure 2013-12
- Revenue Ruling 2014-9
- Ricci v. DeStefano
- Richard Griffin
- RICO
- RIF
- RIFs
- right of first refusal
- Right to Disconnect
- Right to Know
- Right to Work
- Right-To-Sue
- Rising Star
- Rite Aid and Lamons Gasket
- Robert Quackenboss
- Roland Juarez
- Roland Juarez; Los Angeles Business Journal
- Roland M. Juarez
- Rollovers
- Roth
- Rounding Policy
- Rounding Time
- Rule 23
- Rule 68 Offer
- Rule-Making
- Rulemaking
- Ryan A. Glasgow
- Ryan Bates
- Ryan Glasgow
- Sabbath
- Safety
- Safety Incentives
- Salary
- Salary Basis Test
- Salary History
- Salary History Bans
- Salary History Inquiries
- Salary Inquiry
- Salary Reduction
- Sales Commissions
- Same-Sex
- Same-sex couples
- San Francisco
- San Francisco Fair Chance Ordinance
- Sanjee Weliwitigoda
- Sara Harlow
- Sarbanes-Oxley
- SB 459
- SB 553
- SB 95
- SB-973
- SBA
- SBC
- SCA
- Scabby
- Scale
- Scheduling Letter
- Schneiderman
- School Closings
- Scope Of Coverage
- Scott Brown
- Scott H. Kimpel
- Scott Nelson
- SCOTUS
- Sealed Records
- SEC
- Second Circuit
- Secondary Boycotts
- Section 125
- Section 1557
- Section 1983
- Section 203
- Section 2802
- Section 302
- Section 7
- Section 7 Rights
- Secure Scheduling
- Security
- Security Screenings
- Seff v. Broward County
- SEIU
- Self-Insured Health Plans
- Senate Bill 1162
- Separation Agreements
- Settlement
- Settlement Agreement
- Settlement Agreements
- Settlement Disclosure
- Seventh Circuit
- severance
- Severance Agreements
- Severance Payments
- Severe Injury Report
- Sex Discrimination
- Sexual Harassment
- Sexual Orientation
- SFFA
- Shaena Rowland
- Shannon S. Broome
- Sharon Block
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- Shelter in Place
- Short-Time Compensation Program
- Shutdowns
- Sick Leave
- Sick Pay
- Silica Standards
- Single employer
- SIR Dashboard
- Sixth Circuit
- Slow the Spread
- Social Distancing
- Social Media
- Social Media Evidence
- Social Media Policy
- Solicitation Policy
- Solicitation/Distribution Policy
- Southern California Pizza Co.
- Speak Out Act
- Specialty Healthcare
- Specific Jurisdiction
- Spirituality Programs
- Spokeo
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- Spousal Rights
- Standard of Review
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- Staples
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- state court
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- Statistical Audits
- Statute of Limitations
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- Statutes of Limitations
- Staub v. Proctor Hospital
- Stay Violations
- Steering Claims
- STEM
- Stengart v. Loving Care Agency
- Stephen Pattison
- Stewart Acuff
- Stillborn
- Strategic Objectives
- Strategic Plan
- Stray Markings
- Stray Remarks
- Strike
- Strike Plans
- Strike Tactics
- Students for Fair Admissions
- SUB Payments
- Subcommittee on Health
- Subject-Matter Jurisdiction
- Subpoena
- Subpoena Duces Tecum
- Substantial Compliance
- Successor Bargaining Duty
- Successor Company
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- Suitable Seating
- Summary of Benefits and Coverage
- Super Lawyers
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- Supplemental Paid Sick Leave
- Supply Chain
- Supreme Court
- Susan Wiltsie
- Suspension
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- Systemic Discrimination
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- Taxpayer Responsibility Accountability and Consistency Act
- TCPA
- Technatomy Corporation
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- Telephone Consumer Protection Act
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- Temporary Employees
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- Tenth Circuit
- Terence Connor
- Terrence Flynn
- Tesla
- Test Factor
- Testing
- Texas
- Texas Constitution
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- Texas Legal Awards
- Texas Mutual v. Ruttiger
- Texas Regulatory Consistency Act
- Texting
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- The Boeing Company
- The Opportunity to Work Ordinance
- Third Circuit
- Third-party Liability
- Thompson v. North American Stainless
- Thriving in Their 40s
- Time Rounding
- Timekeeping
- Tip
- Tip Credit
- Tip Pooling
- Tip Sharing
- Tipped Employees
- Tipped Workers
- Tipping Policies
- Tips
- Title III
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- Title VII of the Civil Rights Act of 1964
- Tolling
- Top Insurance Cases
- TRAC
- Trade Secrets
- Trade Secrets & Non-Competes
- Trademark
- Traditional labor
- Trailblazer
- Training
- Training Programs
- Transgender
- Transgender Rights
- Transparency
- TransUnion
- Tratree
- Traxler v. Multnomah County
- Trial Management
- TRICARE
- Trucking Industry
- Trump Administration
- Trump Rule
- Tyler S. Laughinghouse
- Typicality Requirement
- U.S. Senate
- U.S. Senate Finance Committee
- UAW
- Uber
- Uber Drivers
- ULP
- ULP Charge
- UNC
- Unconscionability Doctrine
- Undocumented Workers
- undue hardship
- Unemployment
- Unemployment Benefits
- Unemployment Compensation
- Unemployment Discrimination
- Unemployment Insurance
- Unfair Labor Charge
- Unfair Labor Practice
- Unfair Labor Practices
- Uniform Glossary
- Unilateral Change
- Union
- Union Apparel
- Union Button
- Union Dues
- Union Election
- Union Elections
- Union Information Request
- Union Insignia
- Union Logo
- Union Organizing
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- Union Rat
- Union Representation
- Union Representation Elections
- Union Sticker
- Unions
- United States v. Windsor
- University of North Carolina
- Unlawful Insistence
- Unlimited Vacation
- Unsuccessful Assisted Reproduction
- UPMC Braddock
- US Chamber of Commerce
- US Supreme Court
- USAction
- USCIS
- USDA
- Use or Lose Rule
- USERRA
- Vacation
- Vacation Pay
- Vacation Scheduling
- Vaccination
- Vaccine
- Vaccine Incentives
- Vaccines
- Valley Hospital Medical Center
- Variant
- VBA
- VCP
- Venue
- Veterans Preference Act
- VETS-100A
- VETS-4212
- VEVRAA
- Victoria Lipnic
- Video
- Viking River
- Virginia
- Virginia Business Magazine
- Virginia Center for Inclusive Communities
- Virginia Employment Legislation
- Virginia Human Rights Act
- Virginia Labor Law
- Virginia Law
- Virginia Lawyers Weekly
- Virginia Marijuana Laws
- Virginia Overtime Wage Act
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- Virginial Lawyers Weekly
- Virus
- Visa Waiver
- Vital Industry
- Volks Rule
- Voluntary Incentive
- Voter List
- VW
- Wage & Hour
- Wage and Hour
- Wage and Hour Exclusion
- Wage Equality Act
- Wage Fixing
- Wage Inquiries
- Wage Investigation
- Wage Payment
- Wage Penalties
- Wage Reduction
- Wage Statement
- Wage Theft
- Wage Theft Prevention Act
- Wage Transparency
- Waiter
- Waiting Period Rules
- Waiver
- Waivers
- walk around
- Walling v. Portland Terminal
- Wang v. Chinese Daily News
- WARN
- WARN Act
- Washington DC
- We Can Help
- Weapons
- Web Accessibility
- Web Designer
- Webinar
- Website
- Website Accessibility
- Weight Restrictions
- Weingarten
- Wellness Programs
- Wesson
- West Virginia Workplace Freedom Act
- WHD
- Whistleblower
- Whistleblowers
- White Collar Exemption
- William Emanuel
- William J. Emanuel
- Wilma Liebman
- Windsor Decision
- Withdrawal of Recognition
- withholding requirements
- Witness Statements
- Women
- Women In Leadership
- Women of Influence
- Women’s Equality Act
- Work Schedule
- Work Transfers
- Work-Sharing
- Worker Misclassification
- Worker Protection
- Worker Safety
- Workers Bill of Rights
- Workers Compensation
- Workers' Compensation Insurance
- Workplace AI
- Workplace Diversity
- Workplace Investigations
- Workplace Monitoring
- Workplace Policies
- Workplace Privacy
- Workplace Rules
- Workplace Safety
- Workplace Technology
- Workplace Violence
- Workplace Violence Prevention
- WR Reserve
- Wrongful Discharge
- Year In Review
Authors
- Jessica N. Agostinho
- Walter J. Andrews
- Ian P. Band
- Ryan M. Bates
- Christy E. Bergstresser
- Theanna Bezney
- Jesse D. Borja
- Brian J. Bosworth
- Jason P. Brown
- M. Brett Burns
- Daniel J. Butler
- Christopher J. Cunio
- Jacqueline Del Villar
- Kimberlee W. DeWitt
- Steven J. DiBeneditto Jr.
- Robert T. Dumbacher
- Raychelle L. Eddings
- Elizabeth England
- Juan C. Enjamio
- Karen Jennings Evans
- Geoffrey B. Fehling
- Jason Feingertz
- Katherine Gallagher
- Ryan A. Glasgow
- Sharon S. Goodwyn
- Meredith Gregston
- Eileen Henderson
- Kirk A. Hornbeck
- J. Marshall Horton
- Roland M. Juarez
- Keenan Judge
- Suzan Kern
- Elizabeth King
- Stephen P. Kopstein
- Torsten M. Kracht
- James J. La Rocca
- Kurt G. Larkin
- Jordan Latham
- Tyler S. Laughinghouse
- Crawford C. LeBouef
- Michael S. Levine
- Michelle S. Lewis
- Brandon Marvisi
- Lorelie S. Masters
- Reilly C. Moore
- Michael J. Mueller
- J. Drei Munar
- Alyce Ogunsola
- Christopher M. Pardo
- Michael A. Pearlson
- Adriana A. Perez
- Kurt A. Powell
- Robert T. Quackenboss
- D. Andrew Quigley
- Michael Reed
- Jennifer A. Reith
- Amber M. Rogers
- Alexis Zavala Romero
- Zachary Roop
- Adam J. Rosser
- Katherine P. Sandberg
- Elizabeth L. Sherwood
- Cary D. Steklof
- C. Randolph Sullivan
- Veronica A. Torrejón
- Debra Urteaga
- Emily Burkhardt Vicente
- Kevin J. White
- Holly H. Williamson
- Susan F. Wiltsie