On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (the “Act”). The Act will take effect on April 2, 2020 and will sunset on December 31, 2020. In particular, the Act contains two provisions that affect employers’ obligations to allow their employees to take emergency FMLA leave and to provide paid sick leave to employees under qualifying COVID-19-related circumstances.
Emergency Paid Sick Leave Act
The Act mandates certain employers to provide paid sick leave to their qualifying employees. The details are discussed below.
Which employers must provide paid sick leave to employees because of COVID-19-related reasons?
Pursuant to the Act, all employers with fewer than 500 employees must provide paid sick leave.
For how long must an employee have worked for his or her current employer to be eligible for paid sick leave?
Eligible employees are not required to have worked a minimum number of days for an employer prior to becoming eligible for paid sick leave.
Under what circumstances can an employee qualify for paid sick leave?
An employee qualifies for paid leave if he or she is:
- Subject to a government quarantine or isolation order;
- Advised by a health care provider to self-quarantine;
- Experiencing COVID-19 symptoms and waiting to seek medical advice and diagnosis;
- Caring for an individual subject to a government quarantine or isolation order;
- Caring for an individual who has been advised by a health care provider to self-quarantine;
- Caring for employee’s child because the child’s school or place of care is closed or the employee’s childcare provider is unavailable due to a public health emergency; or
- Experiencing other substantially similar condition specified by the Health and Human Services Secretary in consultation with the Treasury Secretary and Secretary of Labor.
Are all COIVID-19 affected employees eligible for paid sick leave?
No. The Act allows the Secretary of Labor to exclude healthcare providers and emergency responders from the definition of employees who are allowed to take such leave.
How much must employers pay their employees?
Employers must pay up to 80 hours of paid leave to full-time employees and up to the usual number of hours a part-time employee is scheduled to work in a two-week period, at the employee’s regular rate, to employees who are out of work for the following reasons:
- Subject to a government quarantine or isolation order;
- Advised by a health care provider to self-quarantine;
- Experiencing COVID-19 symptoms and waiting to seek medical advice and diagnosis;
Such payments are limited to $511 per day and a total of $5,110 per employee.
Employers must pay up to 80 hours of paid leave to full-time employees and up to the usual number of hours a part-time employee is scheduled in a two-week period, at two-thirds of the employee’s regular rate, to employees who are out of work for the following reasons:
- Caring for an individual subject to a government quarantine or isolation order;
- Caring for an individual who has been advised by a health care provider to self-quarantine;
- Caring for employee’s child because the child’s school or place of care is closed or the employee’s childcare provider is unavailable due to a public health emergency; or
- Experiencing other substantially similar condition specified by the Health and Human Services Secretary in consultation with the Treasury Secretary and Secretary of Labor.
Such payments are limited to $200 per day and a total of $2,000 per employee.
Can employees use paid sick leave in addition to other available paid sick leave?
Yes. Eligible employees can use this paid sick leave in addition to other paid leave available to the employee pursuant to the employer’s usual policies.
Emergency Family Medical Leave Act
The Act makes significant temporary changes to the FMLA. The most significant changes are discussed below.
Which employers must provide job-protected FMLA leave to employees because of COVID-19-related reasons?
Pursuant to the Act, all employers with fewer than 500 employees must provide 12 weeks of job-protected leave to their employees.
For how long must an employee have worked for his or her current employer to be covered by the Act’s emergency FMLA protections?
An employee must have worked for at least 30 days (before the first day of leave) for a covered employer to be covered by the Act’s emergency FMLA protections. This required duration is much shorter than the FMLA’s usual requirement that an employee must work for the employer for 12 months before becoming eligible for FMLA-protected leave.
Are all employers with fewer than 500 employees required to provide emergency FMLA leave to their employees?
No. The Act allows the Secretary of Labor to exempt businesses who employ fewer than 50 employees, if the requested leave would jeopardize the viability of the business.
Under what circumstances can an employee qualify for emergency FMLA leave?
An employee qualifies for leave if he or she is unable to work or telework because the employee must care for the employee’s child (under 18 years of age), if the child’s school or place of care is closed, or the childcare provider is unavailable due to a public health emergency, such as COVID-19 pandemic.
Are all COVID-19-affected employees eligible for the emergency FMLA leave?
No. The Act allows the Secretary of Labor to exclude healthcare providers and emergency responders from the definition of employees who are allowed to take such leave.
Must employers pay their employees during emergency FMLA leave?
Employers are not required to pay their employees for the first 10 days of the Emergency FMLA leave period. During this 10-day period, employees may elect to use any available paid leave, such as paid time off, paid vacation or paid sick leave.
After the first 10 days, employers must pay full-time employees two-thirds of each employee’s regular pay rate for the number of hours the employee would have regularly worked. Such payments are limited to $200 per day and to a total of $10,000 per employee.
After the first 10 days, employers must also pay part-time employees. Employers must pay part-time employees two-thirds of each employee’s regular pay rate for the average number of hours the employee worked during the six months immediately before taking leave. If a part-time employee has been with an employer for less than six months, the average number of hours worked by the employee is the average number of hours the employee would have been usually scheduled to work. Such payments are limited to $200 per day and to a total of $10,000 per employee.
Must the employer restore employees back to the positions they held prior to taking emergency FMLA leave?
Employers who employ 25 or more employees must adhere to the usual job restoration obligations outlined in the FMLA: to return the employee to his or her former position or to an equivalent job, one that is virtually identical in the terms of pay, benefits, and other employment terms and conditions.
Generally, employers who employ less than 25 employees are exempt from the job restoration mandate, if the employee’s position has been eliminated due to economic circumstances or other circumstances caused by the public health emergency. This exemption is subject to a caveat: even if an employee’s position has been eliminated, employers with fewer than less than 25 employees must make reasonable efforts for one year to return the employee to work and to an equivalent position.
Tax Credits for Employers
The Act provides for a number of refundable tax credits for employers who are required to provide emergency FMLA and emergency paid sick leave to their employees. These credits will be calculated as part of employers’ quarterly payroll tax filings. Employers can apply 100 percent of the sums paid as emergency FMLA and emergency paid sick leave to qualifying employees. The federal government will refund any excess sum to the employer.
Next Steps
Employers must now provide notice to their employees. The Department of Labor and Department Treasury are expected to issues regulations and guidance in the coming weeks.
Businesses requiring additional guidance about the Families First Coronavirus Response Act can contact Robert Brooks
or
