What Employers Need to Know About the Families First Coronavirus Response Act

As the COVID-19 pandemic continues to spread and individual workers fall ill or are forced to withdraw from the workforce to care for ill family members, federal, state, and local governments have begun enacting legislation requiring employers to provide various forms of paid and unpaid leave for affected employees. Most recently, President Trump signed into law an economic stimulus package – the Families First Coronavirus Response Act (the “Act”), which includes, amongst others, provisions for paid sick leave, expanded unemployment benefits, and expanded Family and Medical Leave Act (“FMLA”) provisions. The new law takes effect on April 2, 2020 and will remain in effect until December 31, 2020. This newsflash discusses the Emergency Paid Sick Leave and expanded FMLA provisions which apply to all employers with fewer than 500 employees¹.

Emergency Paid Sick Leave Act

Eligibility

All employees of employers with fewer than 500 employees, regardless of the length of their tenure with their employer, are eligible for paid sick leave under the Emergency Paid Sick Leave Act.

Qualifying Reasons For Taking Paid Sick Leave

An eligible employee may take paid sick leave if he/she is unable to work (including telework) because:

1. The employee is subject to a federal, state, or local quarantine or isolation due to COVID-19;
2. A health care provider advised the employee to self-quarantine due to concerns related to COVID-19 (self-imposed quarantine without medical advice does not qualify under the Act);
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. The employee is caring for an individual (not limited to family members, although there is a stray reference to family members elsewhere in the Act) who is either subject to a federal, state, or local quarantine or isolation due to COVID-19 or has been advised to self-quarantine due to concerns related to COVID-19;
5.  The employee is caring for the employee’s child whose school has been closed or place of care is unavailable due to COVID-19 precautions; or
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretaries of Treasury and Labor. The precise meaning of this sixth reason will be clarified by the Secretary of Health and Human Services.

Benefit

Full-time employees receive 80 hours of paid sick leave. Part-time employees receive the equivalent of the number of hours they would work, on average, during a two-week period. There is a separate method for calculating the benefit for part-time employees whose schedules vary widely from week to week. For qualifying reasons 1, 2, and 3 identified above, eligible employees will receive paid sick leave at their regular rate, except that in no event shall the amount paid exceed $511 per day and $5,110 in total. For qualifying reasons 4, 5, and 6 identified above, eligible employees will receive paid sick leave at two-thirds of their regular rate, except that in no event shall the amount paid exceed $200 per day and $2,000 total. Employers can seek reimbursement for the wages paid to employees taking emergency paid sick leave through tax credits applicable to the employer’s portion of Social Security taxes.

Employer Posting Requirement

Employers must post a notice that advises employees of their rights under the Act. The Secretary of Labor is required to create a notice by March 25.

Penalties for Noncompliance

Employers who fail to provide paid sick leave as required by the Act will be considered to have failed to pay minimum wages in violation of Section 6 of the Fair Labor Standards Act of 1938 (the “FLSA”) and will be subject to FLSA penalties.

Emergency Expansion of Family Medical Leave Act to Provide Benefits to Employees Whose Child’s School or Place of Care Has Closed

The Act also includes the Emergency Family and Medical Leave Expansion Act (the “FMLA Expansion Act”), which provides eligible employees whose child’s school or place of care has closed due to the COVID-19 pandemic with a new federal source of paid leave.

Eligibility

Previously, the FMLA applied only to employers with 50 or more employees, and to employees who had worked at least 1,250 hours during the preceding 12 months for designated reasons: an employee’s health condition; to care for a family member with a health condition; or to care for a newborn infant or an adopted and/or foster child. On a temporary basis, the Emergency FMLA Expansion Act amends the FMLA and creates a new leave entitlement. For purposes of the new entitlement only, the Act alters the definition of employer to include all employers with fewer than 500 employees, and expands the definition of a covered employee to include all employees who have worked for covered employers (i.e., those with less than 500 employees) for at least 30 days. The Secretary of Labor has the authority to exempt from the Emergency FMLA Expansion Act certain health care providers and emergency responders, and small businesses with fewer than 50 employees if the Act would jeopardize a business’s viability.

Qualifying Reason for Taking Expanded FMLA Leave

An eligible employee may take up to 12 weeks of leave if he/she is unable to work (including telework) because the employee must care for his/her child who is under 18 years of age and whose school or place of care has closed due to the COVID-19 public health emergency.

Benefit

A qualifying employee may take up to 12 weeks of leave. The initial 10 days of leave are unpaid, but the employee may elect to use his/her accrued paid sick leave and/or accrued vacation during this otherwise unpaid period. After the initial 10-day period, an employee is entitled to receive from the employer two-thirds of his/her normal wages for the number of hours he/she would be regularly scheduled to work, up to a maximum of $200 per day and $10,000 in total.

Use

All eligible employees may apply for expanded FMLA leave beginning on April 2.  If the necessity for leave is foreseeable, the employee must provide the employer with “such notice of leave as is practicable.”

Restoration to Position

For employers with 25 or more employees, an employee returning from expanded FMLA leave is entitled to reinstatement to the same or an equivalent position. For employers with fewer than 25 employees, an employee returning from expanded FMLA leave is entitled to reinstatement to the position held by the employee when the leave commenced unless that position does not exist due to economic conditions or other changes in operating conditions caused by the public health emergency. In such case, the employer must make reasonable efforts to restore the employee to an equivalent position, and if those efforts fail, make reasonable efforts for at least a year to contact the employee if an equivalent position becomes available.

Employer Takeaways

What should employers do now to ensure compliance with the Act?

While the legal landscape continues to evolve, to ensure compliance, employers with 500 or fewer employees should do the following:

1. Review and revise existing leave policies to provide for paid leave for employees affected by COVID-19 in accordance with federal law.
2. Educate management and supervisory employees about the new requirements for paid sick leave under federal law and the expansion of the FMLA.
3. Consult with competent labor and employment counsel as issues arise during implementation.

For additional information, contact us at contact@leoncosgrove.com.