Today, the Senate passed the Families First Coronavirus Response Act, the first federal effort to provide relief to individuals affected by COVID-19. The President is expected to sign the bill shortly, and Congress plans to continue to work on additional legislation to help individuals and employers manage through these unprecedented times.
Following is a summary of some of the Act’s provisions. We will continue to monitor developments and will provide updates as appropriate. Should you have any questions, please don’t hesitate to contact us.
Employers with Fewer than 500 Employees Must Offer Emergency Family and Medical Leave
The FMLA Expansion Act amends the FMLA to provide up to 12 weeks of job-protected leave for eligible employees who experience a qualifying event related to a COVID-19 public health emergency. This new law:
Changes the definition of covered employer for public health emergency leave;
Reduces the length of employment required to be eligible for public health emergency leave to 30 calendar days; and
Provides pay up to applicable dollar caps for public health emergency leave taken after the initial 10 days of leave.
When does it go into effect? The new public health emergency leave provisions go into effect no later than 15 days following enactment of the Act and will stay in place through December 31, 2020.
Who is a covered employer? Although employers are typically not covered by the FMLA unless they have at least 50 employees, the threshold coverage for FMLA public health emergency leave has been lowered to one employee. “Covered employers” include those with fewer than 500 employees. However, an employer with fewer than 50 employees in a 75-mile radius is excluded from civil FMLA damages in an employee-initiated FMLA lawsuit. Additionally, the Secretary of Labor has the authority to exempt small business with fewer than 50 employees from the public health leave requirement when the leave requirement would “jeopardize the viability of the business as a going concern.”
Who is an eligible employee? Eligible employees include full and part-time employees who have been on the employer’s payroll for 30 calendar days. There is no minimum hours requirement for eligibility. Covered employers may exclude healthcare providers and emergency responders from taking the leave.
What is a covered event for public health emergency FMLA leave? Covered employers must provide up to 12-weeks of job-protected FMLA leave for “a qualifying need related to a public health emergency.” This “qualifying need” is limited to circumstances where the employee is unable to work or telework due to a need to care for a minor child if the child’s school or place of childcare has been closed or the childcare provider is unavailable due to a public health emergency.
Is the time off paid or unpaid? The first 10 days of public health emergency leave is unpaid. An employee may choose to use accrued vacation or sick pay. The employer cannot force use of accrued paid time off. The remainder of the time off must be paid, generally at two-thirds of the employee’s regular rate of pay, up to applicable pay caps. The law limits the amount of required pay for leave to no more than $200 per day and
$10,000 in the aggregate.
Who provides pay for the FMLA time? Employers pay for the FMLA time. Employers may then receive tax credits from the federal government under certain circumstances and up to certain caps.
Can an employer require certification or advance notice for the leave? There does not appear to be a certification requirement for public health emergency leave. Employees must give notice of the need for leave as is practicable under the circumstances.
What are an employee’s reinstatement rights at the end of the public health emergency FMLA leave? Emergency health FMLA leave is generally job-protected, which means an employee has a right to be reinstated to the employee’s job at the end of the leave. Employers with fewer than 25 employees do not have to reinstate an employee if the employee’s position no longer exists following leave due to operational changes occasioned by a COVID-19-related public health emergency, subject to certain conditions.
Employers with Fewer than 500 Employees Must Provide Emergency Paid Sick Leave
The Emergency Paid Sick Leave Act will require covered employers to immediately provide employees with up to 80 hours of paid sick leave for use under the following circumstances:
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 healthcare 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 subject or advised to isolate or quarantine;
The employee is caring for a son or daughter whose school or place of care is closed or childcare provider is unavailable due to COVID-19 precautions; or
The employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
When does it go into effect? The paid sick time provisions go into effect no later than 15 days following enactment of the Act and will stay in place through December 31, 2020.
Who is a covered employer? The law applies to private employers or individuals with 500 or fewer employees and covered public employers.
Which employees are eligible for paid sick time? All employees as there is not minimum duration of employment or hours worked requirement.
How much paid sick time must an employee receive? In general, an employee is entitled to 80 hours of paid sick time (pro-rated for part-time employees). Employees are immediately eligible for the full amount of paid sick time.
How is paid sick time calculated? While the law requires an employee to be provided their regular wage rate for sick time, the law limits paid sick time to $511 per day ($5,110 in the aggregate) where leave is taken for the employee’s own health condition (where leave is taken for reasons (1), (2) and (3), above). Sick time is limited to $200 per day ($2,000 in the aggregate) where leave is taken to care for others or school closures (reasons (4), (5) and (6), above).
Who pays for the sick time? Employers pay for the sick time. Employers may then receive tax credits from the federal government under certain circumstances and up to certain caps.
Is paid sick time under the new federal law in addition to what is already provided by an employer’s sick pay policy or the sick leave requirements of local and state law? The law indicates that sick pay is in addition to an employer’s normal PTO, paid sick and vacation benefits. The law is unclear as to whether paid time provided to an employee under an employer policy or another applicable law before the effective date of this federal law may count toward satisfaction of this federal mandate.