The Families First CoronaVirus Response Act
On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”) as part of the government’s response to the unprecedented situation created by the novel coronavirus of 2019 (“COVID-19”).
***** UPDATE. On March 24, 2020, the U.S. Department of Labor announced that the Act will go into effect on April 1, 2020.*****
Among the provisions most relevant to employers, the Act provides for paid sick leave for employees for certain circumstances related to COVID-19 and amends the Family and Medical Leave Act (“FMLA”) to provide emergency FMLA leave for eligible employees. This article provides a summary of certain provisions of the Act.
Emergency Family and Medical Leave Expansion Act
- Under the Act, the FMLA has been amended and expanded to provide eligible employees with 12 weeks of job-protected leave for a “qualifying need related to a public health emergency” through the Emergency Family and Medical Leave Expansion Act (“E-FMLEA”).
- The expansion is on a temporary basis and will expire on December 31, 2020.
- A “Qualifying Needed Related to a Public Health Emergency” is defined to mean circumstances where the eligible employee is unable to work (or telework) due to a need for leave to care for the employee’s son or daughter who is under 18 because the child’s school or place of care has been closed or his or her childcare provider is unavailable due to a public health emergency.
- The E-FMLEA amends the employee threshold for coverage under the FMLA such that employers with fewer than 500 employees will be required to provide E-FMLEA leave.
- Employees will be eligible for E-FMLEA leave if they have worked for their employer for at least 30 calendar days prior to the designated leave.
- The E-FMLEA allows employers of health care providers or emergency responder employees to exempt such employees from coverage.
- The Secretary of Labor is authorized to exempt small businesses with fewer than 50 employees from the requirements under the E-FMLEA when the imposition of such requirements would jeopardize the viability of the business as a going concern.
- Leave under the E-FMLEA is a mix of paid and unpaid leave. The first 10 days of E-FMLEA leave may be unpaid. However, an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave during the first 10 days of E-FMLEA leave.
- After the first ten (10) days of leave, a qualifying employer must provide paid leave for each day of E-FMLEA Leave as follows:
o The employee must be paid in an amount not less than two-thirds (2/3) of the employee’s regular rate of pay.
o However, the amount an employer is required to pay under the E-FMLEA is capped at $200 per day and $10,000 in the aggregate per employee.
- For employers with 25 or more employees, the traditional job restoration requirements under the FMLA will apply. However, for employers who employ fewer than 25 employees, job restoration is not required if all the following conditions are satisfied: (A) the employee takes leave under the E-FMLEA; (B) the position held by the employee does not exist due to economic conditions or other changes in operating conditions of the employer that (i) affect employment; and (ii) are caused by a public health emergency during the period of leave; and (C) the employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced. If no equivalent positions are available when the employee seeks to return from E-FMLEA leave, the employer must attempt to contact the employee if an equivalent position to the one previously held by the employee becomes available in the next year.
Emergency Paid Sick Leave Act
- Within the Act is also the Emergency Paid Sick Leave Act (“EPSLA”), which requires applicable employers to allow their employees to take paid sick leave in the following situations:
o The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
o The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19.
o The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis.
o The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
o The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
o 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.
- The requirements of the EPSLA apply to private employers who employ fewer than 500 employees, and to government employers.
- Employers of health care providers or emergency responder employees may exempt such employees from coverage.
- Full-time employees are entitled to 80 hours of paid sick leave under the EPSLA. Part-time employees are entitled to a number of leave hours equal to the number of hours that such employee works, on average, over a 2-week period.
- Paid sick time under the EPSLA shall not carry over from 1 year to the next.
- Paid sick leave wages are limited to $511 per day up to $5,110 in the aggregate per employee for their own personal use under the law and to $200 per day up to $2,000 in the aggregate per employee to care for others and any other substantially similar condition.
- The EPSLA remains in effect until December 31, 2020.
To help compensate for the cost of these requirements, the Act permits affected employers to obtain refundable payroll tax credits through the calendar year 2020 to cover wages paid under the E-FMLEA and/or the EPSLA. Subject to certain terms and conditions, the EPSLA tax credit would be for wages paid up to $511/day per employee for leave related to their own condition or $200/day if the EPLSA leave is to care for a family member or child following the child’s school closing. The E-FMLEA tax credit would be for wages paid up to $200 per day per employee for a qualifying event and up to $10,000 maximum for the year per employee.
Please contact the attorneys of McNamee Hosea should you have any specific questions or concerns.