On Wednesday, March 18, 2020, President Trump signed into law the Families First Coronavirus Relief Act, H.R. 6201 (the “Act”). This update explains key aspects of the Act that provide for paid Family and Medical Leave Act (FMLA) and paid sick leave.
- Emergency Family and Medical Leave Act (“FMLA”)
Employers Covered: The Act provides employees of employers with fewer than 500 employees with the right to take up to 12 weeks of job-protected leave under the Family and Medical Leave Act (“FMLA”).
How much leave is Paid? 10 of the 12 weeks are paid at a rate of no less than two-thirds of the employee’s usual rate of pay. (FMLA leave for all other purposes remains unpaid.)
Eligibility: To be eligible for paid leave, employees must have been on the employer’s payroll for only 30 days prior to the requested leave and may use emergency FMLA leave for ONLY the following reason:
- To allow an employee, who is unable to work or telework, to 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.
Note: Prior proposed drafts included other qualifying reasons such as to care for a family member who is adhering to a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus. These are not included in the Act.
Employee Flexibility: The first 10 days of leave may be unpaid. The employee may choose to substitute accrued paid time off or other medical or sick leave during this period, but an employer cannot require an employee to do so. After the first two weeks of unpaid leave, employers must continue paid FMLA leave at a rate of no less than two-thirds of the employee’s usual rate of pay.
Reinstatement Rights: Leave under the Act is job-protected. Employers must return the employee to the same or equivalent position upon their return to work. There is an exception for small employers with less than 25 employees: if the employee’s job no longer exists due to COVID-19, the employer is only required to make reasonable efforts to restore the employee to an equivalent position over a one-year period.
Coverage Exceptions: The Act grants the Secretary of Labor the authority to issue regulations exempting: (1) certain health care providers and emergency responders from taking leave under the bill; and (2) small business with fewer than 50 employees from the requirements of the bill if it would jeopardize the viability of the business as a going concern.
Expiration: This aspect of the Act becomes effective April 2, 2020 and expire on December 31, 2020.
2. Emergency Paid Sick Leave
Employers Covered: Employers with fewer than 500 employees will be required to provide full-time employees with 2 weeks (80 hours) of paid sick leave for the following reasons:
(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 a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19;
(5) The employee is caring for a son or daughter if the school or place of care of the child has been closed, or the child care provider of such son or daughter 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 Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Employees Covered: Both full-time and part-time employees are eligible for paid leave.
Full time employees will receive paid leave at their full regular rate of pay for reasons 1, 2, and 3, above, and 2/3 of their regular rate of pay for reasons 4 and 5.
For part-time employees or those with irregular hours, emergency paid sick leave will be calculated based on the number of hours the employee works on average over a 2-week period.
Sick leave payments to employees who have worked less than 6 months shall be calculated based on the average number of hours that the employee would regularly be scheduled to work.
The paid sick provisions state that unused paid sick leave does not carry over from one year to the next.
Capped Payments: The Act places a cap of $511 per day ($5,110 total) per employee who take leave for reasons (1), (2) and (3) above (own use) and $200 per day ( $2,000 total) for reasons (4), (5), and (6) (caring for others).
Coverage Exceptions: The Act grants the Secretary of Labor the authority to issue regulations exempting: (1) certain health care providers and emergency responders from taking leave under the bill; and (2) small business with fewer than 50 employees from the requirements of the bill if it would jeopardize the viability of the business as a going concern.
Tax Credits: Employers who are required to provide paid leave under Emergency FMLA and Emergency Paid Sick Leave are eligible to receive refundable tax credits.
Expiration: This aspect of the Act become effective April 2, 2020 and expire on December 31, 2020.
As always, please let me know if I can help.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
