The Families First Coronavirus Response Act is now law. With millions of Americans forced out of the workplace, the legislation provides some relief for employees through the form of expanded Family and Medical Leave Act (“FMLA”) and paid sick leave. President Trump signed the bill last night. The Department of Labor announced that the legislation will go into effect April 1, 2020, and will remain in effect until December 31, 2020.
While the legislation contains additional provisions that are not related to employee leave, this article focuses on the leave-related provisions.
The provisions discussed in this article pertain to private entities or individuals with fewer than 500 employees and public agencies (including municipalities) with 1 or more employees (even if they have 500 or more employees). It is unclear what provisions may later be enacted to address larger private employers.
The Secretary of Labor is permitted to exclude healthcare providers and emergency responders from the leave provisions, and to exempt small businesses with fewer than 50 employees if the leave would jeopardize the business’s viability. It is not known what criteria the Secretary of Labor will impose or how quickly this will occur. However, the legislation also states that an employer of a health care provider or emergency responder may elect to exclude the employee from this program.
Emergency Family and Medical Leave Act
- The provisions expanding FMLA coverage apply only to coronavirus-related situations. They do not expand eligibility and coverage for other FMLA leaves.
- An employee may become eligible for leave after working for the employer for 30 days.
- Eligible employees may take up to 12 weeks of job-protected leave to allow an employee, who is unable to work or telework, to care for the employee’s child under the age of 18 if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency.
- A portion of the leave is paid. The first 10 days of Emergency FMLA is not required to be paid. The employee may choose to use accrued paid leave, such as sick or vacation leave, to continue pay during this period. After the first 10 days, the employer must pay full-time employees 2/3 of the employee’s regular rate for the number of hours the employee would otherwise have been scheduled. For employees who work a part-time or irregular schedule, the pay is determined based on the average hours worked in the six months prior to the leave. If the employee worked fewer than six months, the employee is paid based on the employee’s reasonable expectation at hiring as to the average hours he or should would normally be scheduled to work.
- The maximum pay required under this legislation is $200 per day and $10,000 total, per employee.
- Employers with 25 or more employees are required to return employees from Emergency FMLA to the same or equivalent position. Employers with fewer than 25 employees are excluded from this requirement if the position no longer exists following the Emergency FMLA due to an economic downturn or other circumstances caused by a public health emergency during the period of leave. However, even these smaller employers still must make reasonable attempts to return the employee to an equivalent position and to continue to make attempts for up to a year. It is not clear what larger employers will be required to do for employees if the position no longer exists.
- Employers (except government employers) may claim a tax credit for these payments.
Emergency Paid Sick Leave Act
This law provides for paid sick leave for coronavirus-related reasons. An eligible employee may take paid sick leave when the employee is unable to work or telework due to a need for leave because:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-1 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. (Note, this does not need to be a family member.)
- The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Note, the self-quarantine provisions apply only when advised by a health care provider due to concerns related to COVID-19. An employee cannot take this leave because of his or her own concerns about potential exposure.
Under this program, employees are entitled to paid sick time of 80 hours for full-time employees. Part-time employees are entitled to paid sick time for the number of hours the employee works, on average, over a 2-week period. The requirement is capped at $511 per day and $5,110 in the aggregate for the first three reasons listed above. For the second three reasons listed above, the employee is only entitled to 2/3 pay, with a cap of $200 per day and $2,000 in the aggregate for the second three reasons listed above. Employers may claim a tax credit for these payments.
An employer of a health care provider or emergency responder may elect to exclude the employee from this program. This provision also does not apply to employers with 500 or more employees.
Sick time does not carry over to the next year, nor is it to be paid out upon separation.
Employers may not require that the employee search for or find a replacement employee to cover hours missed due to the paid sick time.
This paid sick time is available for immediate use, regardless of how long the employee has been employed by the employer. Employers may not require employees to use other paid leave before using this paid sick time. The law does not diminish rights available to employees under other applicable laws, collective bargaining agreements, or existing employer policies.
Employers may not retaliate against employees for taking this leave or for filing a complaint or testifying in a proceeding related to this legislation.
A notice will be prepared by the Department of Labor, which must be posted in conspicuous places on the employer’s premises. This notice is to be made available not later than 7 days after the enactment of the legislation.
Violations of the law will be treated as violations of the Fair Labor Standards Act, with its attendant penalties.
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As everyone works to keep up with the rapid developments brought upon by the coronavirus, the labor and employment attorneys are here to guide you through the many employment-related decisions employers must face. Please call us if so we can assist you.