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Families First Coronavirus Response Act

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Signed into law on March 18, 2020, the Families First Coronavirus Response Act (“Act”) requires employers to offer emergency paid leave under a new paid sick leave requirement and expanded leave under the Family Medical Leave Act (“FMLA”). This new law will go into effect April 2, 2020.

In short, the Act:

  1. provides a new paid sick leave entitlement for certain COVID-19 related absences (Emergency Paid Sick Leave Act);

  2. expands FMLA for similar absences (Emergency FMLA); and

  3. provides tax credits to help employers offset the costs of these benefits.

Both the Emergency Paid Sick Leave and Emergency FMLA provisions expire on December 31, 2020.

Federal Emergency Paid Sick Leave Act

The Federal Emergency Paid Sick Leave Act (“EPSLA”) requires employers with fewer than 500 employees to provide additional paid sick time to employees unable to work (or telework) because:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.

  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

  4. The employee is caring for an individual who is subject to an order as described in subparagraph 1 or as described in subparagraph 2.

  5. The employee is caring for his or her child where the school or place of childcare for that child has been closed, or the childcare provider is unavailable, due to COVID-19 precautions.

  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Service in consultation with the Secretary of the Treasury and the Secretary of Labor.

The sick leave pay rates depend on which circumstance triggers the employee’s use of benefits under EPSL. Use of paid sick leave under points 1 to 3 above entitles the employees to the greater of the employee’s regular rate, or the highest applicable minimum wage. Employers may cap this paid sick leave to $511 per day and $5,110 in aggregate. With regard to use of leave under points 4 to 6, employers may cap this leave at $200 per day and $2,000 in the aggregate. Any unused EPLSA leave cannot be rolled over into 2021, nor is it paid out at termination. Employers cannot force employees to use other forms of paid leave (PTO, vacation, etc.) before using EPSLA leave.

Notably, all employees are eligible for this leave regardless of their tenure and number of hours worked per week.[1] However, full-time employees are entitled to 80 hours paid sick leave while part-time employees are entitled to the average number of hours the employee works in a 2-week period.

After the first workday (or portion thereof) that an employee received paid sick leave under EPSLA, an employer can require the employee to follow reasonable notice procedures to continue receiving such paid sick leave. As such, employers should implement and publish to employees how EPSLA will be applied and what the notice requirements are for employees who draw on EPLSA leave.

The Emergency Family and Medical Leave Expansion

The Emergency Family and Medical Leave Expansion (“Emergency FMLA”) extends and expands FMLA to provide job protection and partial wage replacement for affected employees. Emergency FMLA covers employers with fewer than 500 employees.[2] Employees who have worked for the employer for at least 30 days are eligible to take Emergency FMLA leave.[3]

Here are the leave benefits under Emergency FMLA:

  • Employers must provide up to 12 weeks of paid and unpaid FMLA leave to employees unable to work (or telework) to care for a child under the age of 18 if the child’s school or place of care has been closed, or the child’s care provider is unavailable due to a COVID-19 emergency declared by a federal, state, or local authority.

  • The first 10 days of Emergency FMLA are unpaid, but the employer must allow the employee to use accrued vacation, personal or sick leave.

  • For leave beyond the first 10 days, the employer must provide pay of at least two-thirds of the employee’s regular rate of pay (as defined by the Fair Labor Standards Act), capped at no more than $200 per day and $10,000 in the aggregate.

  • The employee must provide the employer with as much notice as possible where the need for leave is foreseeable.

 Job Restoration Under Emergency FMLA

Employers with 25 or more employees must restore employees to their positions following Emergency FMLA leave. By contrast, employers with fewer than 25 employees may deny restoration only if:

  1. the position no longer exists due to economic conditions or changes to other operating conditions caused by a public health emergency;

  2. the employer makes reasonable efforts to restore the employee to an equivalent position; and

  3. the employer makes reasonable efforts for a one-year period to contact the employee if an equivalent position becomes available.

Retaliation

Employers are prohibited from retaliating against employees for drawing on the benefits of EPSLA or Emergency FMLA. Employers must post a notice to employees of EPSLA rights, which the Secretary of Labor will be publishing this week.

Tax Credits

The Act includes refundable tax credits for employers required to offer paid sick leave or Emergency FMLA under the Act, subject to certain caps and offsets.

Next Steps

We recommend that employers draft and implement supplemental sick leave policies to address the newly enacted Emergency FMLA and EPSLA. These new policies should be published to employees to notify them of their rights to request leave under the new laws, and any notification protocol employees must follow to use such leave.

[1] There are some coverage exceptions for certain healthcare providers and emergency responders.

[2] The Secretary of Labor may issue regulations for good cause to exempt businesses with fewer than 50 employees from the requirement to provide Emergency FMLA if it would jeopardize the viability of the business.

[3] The Secretary of Labor may issue regulations to exclude certain health care providers and emergency responders from the definition of an eligible employee.

 

Author: Caitie Emmett, Associate.

The Maier Law Group helps companies ensure that their policies and practices comply with the relevant workplace regulations.  Please contact us at info@maierlawgroup.com for more information.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.