EMERGENCY CORONAVIRUS BILL SIGNED INTO LAW TEMPORARILY EXPANDING THE FAMILY MEDICAL LEAVE ACT AND PROVIDING FOR EMERGENCY PAID SICK LEAVE

EMERGENCY CORONAVIRUS BILL SIGNED INTO LAW TEMPORARILY EXPANDING THE FAMILY MEDICAL LEAVE ACT AND PROVIDING FOR EMERGENCY PAID SICK LEAVE

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “FFCRA” or the “Act”).  The FFCRA contains several provisions intended to address the affects of the coronavirus.  Two provisions are notable for employers.  First, the FFCRA temporarily expands leave available to employees under the Family and Medical Leave Act (the “FMLA”) for a “qualifying public health emergency.”  Second, the FFCRA provides emergency paid sick leave to employees who are unable to work or telework due to certain reasons related to the coronavirus. 

The FFCRA becomes effective on April 2, 2020.  Therefore, employers have approximately two-weeks to prepare.  Covered employers are encouraged to immediately begin putting policies in place to prepare for the changes. 

A summary of the Act’s provisions expanding FMLA and requiring emergency paid sick leave is provided below in a question and answer format.    

  1. Temporary Expansion of the FMLA

The FFCRA temporarily amends the FMLA to provide leave to “eligible employees” for a “qualifying need related to a public health emergency.” 

  1. What Employees are Eligible for Public Health Emergency FMLA Leave?

Under the FFCRA, employees are eligible for public health emergency FMLA leave so long as they have been employed for at least 30 days by a “covered employer.”  Certain exemptions may apply to employees who are health care providers or emergency responders. 

  • Who are “Covered Employers”?

“Covered employers” include all private sector employers who employ fewer than 500 employees and all public sector employers.  Thus, employers with less than 50 employees are “covered” and are required to provide eligible employees with public health emergency FMLA leave unless a hardship exemption is obtained from the Secretary of Labor.

  • When can an Eligible Employee Use Public Health Emergency FMLA Leave?

Eligible employees can use public health emergency FMLA leave when they are unable to work or telework due to a need to care for their minor child if the child’s elementary or secondary school or place of care has been closed, or the child’s paid child care provider is unavailable due to “an emergency with respect to COVID-19 declared by a federal, state, or local authority.” 

  • How Much Public Health Emergency FMLA Leave is Available to an Eligible Employee?

The FFCRA does not expand the amount of leave available under the FMLA.  Therefore, eligible employees will be able to take up to 12 weeks of public health emergency FMLA leave.  Eligible employees are required to provide as much notice as practicable of any qualifying leave. 

  • Are Employers Required to Pay Eligible Employees Who Take Public Health Emergency FMLA Leave?

Not during the first 10 days.  During the first 10 days, leave can be unpaid or an employee can elect to use available paid time off (employers cannot require the use of paid time off).  However, after 10 days, public health emergency FMLA leave must be paid at a rate of two-thirds the employee’s regular rate of pay for their usual scheduled hours, up to a maximum of $200 per day or $10,000 in the aggregate. 

  • Do Employers have to Protect the Jobs of Eligible Employees Who Take Public Health Emergency FMLA Leave?

Yes, except that employers with 25 or fewer employees are exempt from job restoration requirements provided that: (1) the employee’s position no longer exists “due to economic conditions or other changes in operating conditions . . . caused by a public health emergency during the period of leave;” (2) the employer makes reasonable efforts to restore the employee to an equivalent position, and (3) if such efforts fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available during the following year.

  • Are there any Provisions to Assist Employers in Covering the Cost of Public Health Emergency FMLA Leave?

Yes, the paid public health emergency FMLA leave provision of the FFCRA provides employers with certain payroll and self-employment tax credits to assist in offsetting costs. 

  • How Long is Public Health Emergency FMLA Leave Available under the FFCRA?

Through December 31, 2020.

  1. TEMPORARY FEDERAL PAID SICK LEAVE

In addition to providing public health emergency FMLA leave, the FFCRA establishes a federal paid sick leave program through a provision known as the Emergency Sick Leave Act (the “Sick Leave Act”).  

  1. What Employers are Covered by the Sick Leave Act?

The Sick Leave Act applies to all public employers and all private employers with fewer than 500 employees.  The Secretary of Labor may exempt from coverage (1) health care providers and emergency responders, and (2) employers with less than 50 employees if paid leave for a school or daycare closure would jeopardize the viability of the employer’s business.

  • What Employees are Eligible for Paid Sick Leave?

Generally, all employees of a covered employer are eligible.  The only exception to eligibility is for health care providers and emergency responders.  Employers may elect to exclude such employees from being eligible for paid sick leave. 

  • What Qualifies an Eligible Employee for Paid Sick Leave?

Covered employers must provide paid sick leave to eligible employees if the employee is unable to work or telework because the employee: (1) is subject to a government quarantine or isolation order related to coronavirus; (2) has been advised by a health care provider to self-quarantine due to coronavirus concerns; (3) is experiencing symptoms of coronavirus and is seeking a medical diagnosis; (4) is caring for an individual subject to a government quarantine order or who has been advised to self-quarantine due to coronavirus; (5) is caring for their son or daughter whose school or place of care has closed due to coronavirus; or (6) is experiencing a substantially similar condition to 1-5 above, as specified by the Department of Health and Human Services.

  • How Much Paid Sick Leave do Eligible Employees Receive?

Full-time eligible employees are entitled to 80 hours of paid sick leave; paid sick leave for part-time employees is pro-rated based on the number of hours regularly worked in a two-week period.

  • Can an Employer Require an Eligible Employee to Use Available Paid Time Off Before Using Paid Sick Leave?

No.  Employers cannot require an employee to use available time off prior to taking paid sick leave under the Sick Leave Act.  Additionally, employers should note that the Sick Leave Act is intended to expand and not diminish an employee’s rights under federal, state, or local law, a collective bargaining agreement, or existing employer policy. 

  • What are an Employer’s Payment Obligations?

If an employee cannot work due to a quarantine or coronavirus symptoms, paid sick leave must be paid at the employee’s regular rate of pay.  If an employee cannot work due to caring for a family member subject to quarantine or a child whose school or place of care has been closed, paid sick leave must be paid at two-thirds the employee’s regular pay rate. 

  • Is there a Cap on the Amount an Employer is Required to Pay?

Yes.  For an employee who is unable to work or telework due to a quarantine or his or her own symptoms the cap is $511 per day and $5,110 in the aggregate.  For an employee unable to work due to caring for a family member or child, the cap is $200 per day and $2,000 in the aggregate. 

  • Are there any Provisions to Assist Employers in Covering the Cost of Paid Sick Leave?

Yes, the Sick Leave Act provides employers with certain payroll and self-employment tax credits to assist in offsetting costs. 

  1. How Long is Paid Sick Leave under the Sick Leave Act Available?

Emergency paid sick leave sunsets on December 31, 2020. 

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