On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act into law, enacting two new emergency leave provisions that will have a significant impact on both employers and employees:
EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT
The Emergency Family and Medical Leave Expansion Act amends the Family and Medical Leave Act of 1993 (“FMLA”) and is effective from April 1, 2020 through December 31, 2020. The Emergency Family and Medical Leave Expansion Act only applies in limited circumstances:
- A private sector employer must have less than five hundred employees. Public-sector employees that are otherwise covered by FMLA are also affected.
- The employee must be employed for at least thirty days prior to the emergency family and medical leave.
- In order for a leave to qualify, it must relate to a public health emergency (meaning an emergency with respect to COVID-19 declared by a Federal, State, or local authority) resulting in an employee being unable to work or telework due to a need for leave to care for the employee’s son or daughter under eighteen years of age if the child’s school or place of care has been closed, or the child care provider of such son or daughter is unavailable due to the public health emergency.
The first ten days of the twelve week emergency family and medical leave may be unpaid, although an employee may elect to substitute any accrued paid time off for the unpaid leave. The remaining ten weeks must be paid by the employer, based on at least 2/3 of an employee’s regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work. The paid leave shall not exceed $200.00 per day and $10,000.00 in the aggregate.
Employees are requested to provide as much notice as is practicable of their requested emergency family and medical leave.
Employers are required to restore the employees to their positions following the qualifying emergency family and medical leave, unless (a) the employer has fewer than twenty-five employees, (b) the position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by the public health emergency during the period of leave, and (c) the employer makes reasonable efforts to restore the employee to an equivalent position with equivalent pay and benefits.
The Secretary of Labor has the authority to issue regulations for good cause to exclude certain health care providers and emergency responders from the definition of eligible employee and to exempt businesses with fewer than fifty employees from the requirements of the Act when the imposition of such requirements would jeopardize the viability of the business as a going concern.
EMERGENCY PAID SICK LEAVE ACT
Like the Emergency Family and Medical Leave Expansion Act, the Emergency Paid Sick Leave Act will take effect on April 1, 2020 and will expire on December 31, 2020. Pursuant to this Act, private sector employers with fewer than 500 employees and covered public employers will be required to provide paid sick leave to an employee who is unable to work or telework because:
- 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 health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis;
- The employee is caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to quarantine or self-quarantine;
- The employee is caring for a son or daughter whose school or place of care is closed, or the child care provider is unavailable due to COVID-19 precautions; or
- The employee is experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and Secretary of Labor.
Full time employees are entitled to eighty hours of paid emergency sick leave and part time employees are entitled to paid emergency sick leave equal to the number of hours that the employee works on average over a two week period. If the emergency sick leave is based on (1), (2), or (3), compensation will be based on the greater of the employee’s regular rate of pay or the highest minimum wage pursuant to applicable Federal, State, or Local law and the caps on payment are $511.00 per day and $5,110.00 in the aggregate. If the emergency sick leave is based on (4), (5), or (6), the required compensation will be 2/3 of the greater of the employee’s regular rate of pay or the highest applicable minimum wage pursuant to Federal, State, or Local law and the caps on payment are $200.00 per day and $2,000.00 in the aggregate.
Emergency paid sick leave will not carry over from one year to the next and employees will not be compensated for unused emergency paid sick leave at termination or other types of separation of employment.
Employers may not require employees taking emergency paid sick leave to find other employees to cover their missed hours.
Employees may first use their emergency paid sick leave and employers cannot require employees to use other paid time off before the emergency paid sick leave.
It will be unlawful for employers to discharge, discipline, or discriminate against employees for pursuing their rights pursuant to the Act.
Employers of health care providers and emergency responders may elect to exclude the employees from the application of this Act. In addition, the Secretary of Labor will have the authority to issue regulations for good cause to exclude certain health care providers and emergency responders from the definition of employee, and to exempt small businesses with fewer than fifty employees from providing paid emergency sick leave to an employee to care for a son or daughter whose school or place of care is closed, or whose child care provider is unavailable due to COVID-19 precautions, if the imposition of the requirement would jeopardize the viability of the business as a going concern.
The Secretary of Labor will be issuing a model notice by March 25, 2020 that employers will be required to post in conspicuous places on their premises regarding the new law. The Secretary of Labor is also required to provide guidance on the new law by April 1, the same day that the law takes effect.
The Families First Coronavirus Response Act provides tax credits to employers for qualifying emergency family and medical leave and emergency sick leave paid pursuant to the new laws.
We are all learning to live within this unfamiliar and fluid situation and as I write this, Congress is contemplating another relief package that may result in additional impacts on employers and employees. However, with such a short window of time for businesses and individuals to familiarize themselves with the new emergency leave laws, it is important to be ready to implement them on April 1, 2020.
UPDATE March 24, 2020: the Department of Labor issued fact sheets and questions and answers that indicate that the emergency leave requirements will become effective April 1, 2020:
UPDATE March 27, 2020: Links to the model notice and an FAQ regarding the notice requirement can be found here:
Please feel free to contact us for further guidance and be well!