The Newly Passed Families First Coronavirus Response Act

Last week, the House introduced HR6201, the Families First Coronavirus Response Act (the “Act”), in response to the coronavirus outbreak.

Yesterday, March 18, 2020, the Senate approved the legislation and the President signed the legislation into law. The Act will take effect “not later than 15 days” from yesterday’s date and will expire on December 31, 2020. As information continues to develop, we will provide further updates.

Among other things, the Act expands employee leave rights under the Family and Medical Leave Act (“FMLA”) and provides Emergency Paid Sick Leave as follows:

Emergency Family and Medical Leave Act

Eligibility

The Act extends FMLA benefits to eligible employees of a covered employer who, due to a public health emergency that has been declared by a Federal, State or local authority with respect to COVID-19 are unable to work (or telework) due to a need for leave to care for the employee’s child (under 18 years of age) whose school or place of care has been closed, or whose childcare providers are unavailable.

Under the new law, emergency family and medical leave applies to:

A “covered employer” who has fewer than 500 employees (there is no 50 employee minimum, as is required with typical FMLA).
An “eligible employee” who has been employed for at least 30 calendar days by the employer.

Providing the Leave

Employees may take up to 12 weeks of leave for this purpose, as follows:

The first 10 days of such leave may be unpaid. However, an employee may elect (but is not required) to use any accrued vacation, personal leave, or sick leave during this time period.
For the subsequent days of the leave, an employer shall provide paid leave for each day of leave thereafter, up to $200 a day and $10,000 in the aggregate.
- Paid leave shall be equal to at least two-thirds of an employee’s regular rate of pay and for the number of hours the employee would otherwise be normally scheduled to work.
- Where an employee’s schedule varies each week and the employer cannot determine with certainty the number of hours the employee would have worked if the employee had not gone on leave, the employer may calculate the paid leave based on the average number of hours that the employee was scheduled per day over the 6 month period immediately preceding the date on which the employee requests leave; or
- If the employee has not worked for the employer for the preceding 6-month period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

Job Reinstatement

An employee who takes FMLA under this Act must be reinstated to the position held at the time the employee went on leave UNLESS:

The employer has fewer than 25 employees; and
The position held by the employee at the time the employee went on leave no longer exists due to economic conditions or other changes in the operating conditions of the employer that affect employment and that are caused by the public health emergency during the employee’s leave; and
The employer makes reasonable efforts to restore the employee to an equivalent position, BUT if the employer cannot restore the employee to an equivalent position, the employer must continue to make reasonable efforts during the following 1-year period to contact the employee if an equivalent position does become available.

Possible Small Business Exemption

Although the Act itself does not provide for a small business exemption, the Act grants authority to the Secretary of Labor to exempt small businesses with fewer than 50 employees from the requirements of the Emergency Family and Medical Leave Expansion Act. More information is anticipated in this regard in the coming days.

Healthcare Providers and Emergency Responders

An employer of healthcare providers or emergency responders may elect to exclude such employee from the provisions of the Emergency Family and Medical Leave Expansion Act.

Emergency Paid Sick Leave Act

Eligibility and Coverage

The Act further requires an employer who employs fewer than 500 employees, to provide each employee with two weeks of emergency paid sick leave, at the employee’s regular rate of pay, if the employee is unable to work (or telework) due to a need for leave because the employee:

Is subject to a Federal, State or local quarantine or isolation order related to COVID-19;
Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
Is caring for an individual who is subject to a Federal, State or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
Is caring for the employee’s child whose school or place of care has been closed, or whose childcare provider is unavailable, due to COVID-19 concerns; or
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.

For reasons 1 through 3: emergency paid sick leave shall be paid up to $511 a day and $5,110 in the aggregate.

For reasons 4 through 6: emergency paid sick leave shall be calculated as two-thirds of the employee’s regular rate of pay, up to $200 a day and $2,000 in the aggregate.

Calculating Emergency Paid Sick Leave

The amount of paid sick leave is calculated as 80 hours for full-time employees, and for part-time employees, as the average number of hours worked over a two-week period. Emergency paid sick leave does not carry over from year to year.

Where an employee’s schedule varies each week and the employer cannot determine with certainty the number of hours the employee would have worked if the employee had not gone on leave, the employer may calculate such paid leave based on the average number of hours that the employee was schedule per day over the 6 month period immediately preceding the date on which the employee requests such leave.

If the employee has not worked for the employer for the preceding 6-month period, the amount of leave shall be based on the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

Emergency Paid Sick Leave terminates upon the employee’s next scheduled workday immediately following the end of the need for emergency paid sick leave under this Act.

Within 15 days of the enactment of this Act, the Secretary of Labor shall issue guidelines to assist employers in calculating the amount of paid sick time due.

Taking Emergency Paid Sick Leave

Emergency Paid Sick Leave is immediately available to any employee, regardless of how long the employee has been employed.

Regardless of whether the employee has any employer-provided accrued time off available (such as sick leave, vacation time, or PTO), Emergency Paid Sick Leave must be exhausted first. Thereafter, the employee may elect to use any other employer-provided paid time off accrued and available to the employee. An employer may not require an employee to use other paid leave provided by the employer first.

An employer may not require an employee to secure “coverage” in order to take emergency paid sick leave.

Failure to Provide Emergency Paid Sick Leave under this Act

Employers are prohibited from retaliating against employee who takes leave in accordance with the new law.

Failure to pay required emergency sick leave will be treated as a failure to pay minimum wages in violation of the Fair Labor Standards Act and will be subject to the wage and hour penalties associated therewith.

Healthcare Providers and Emergency Responders

An employer of healthcare providers or emergency responders may elect to exclude such employee from the provisions of the Emergency Paid Sick Leave Act.

Tax Credits

Subject to certain limitations, employers will be eligible for a tax credit each calendar quarter for an amount equal to 100% of the qualified emergency paid sick leave wages or family medical leave wages paid by the employer in the respective calendar quarter.

A tax credit will also be available for certain eligible self-employed individuals.

As more news develops, we will continue to provide updates.