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
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.
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.
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.
Guidelines for Employers
From the Governor
Just last week, Governor Gavin Newsom issued an Executive Order in an effort to further enhance California’s ability to respond to the COVID-19 pandemic. The Governor’s order, among other things:
- Waives the one-week waiting period for people who are unemployed and/or disabled as a result of COVID-19;
- Delays the deadline for state tax filing by 60 days for individuals and businesses unable to file on time based on compliance with public health requirements related to COVID-19 filings;
- Directs residents to follow public health directives and guidance, including canceling large non-essential gatherings that do not meet state criteria;
- Readies the state to commandeer property for temporary residences and medical facilities for quarantining, isolating or treating individuals;
- Allows local or state legislative bodies to hold meetings via teleconference and to make meetings accessible electronically; and
- Allows local and state emergency administrators to act quickly to protect public health.
Employees Who Are 65+
Yesterday, the Governor further recommended that people over the age of 65 self-isolate. To that end, employers who are still operating should be mindful of employees who have been recommended to self-isolate, and to refrain from requiring such employees to report to work in the workplace.
Whenever possible, employees who have been recommended to self-isolate should be given remote working capabilities and/or time off (further discussed below).
LA Mayor Garcetti's Emergency Order
Yesterday, Los Angeles Mayor Eric Garcetti issued an Emergency Order placing temporary restrictions on restaurants, bars, and other establishments in the City of Los Angeles. The restrictions took effect in the City of Los Angeles at 11:59 p.m. yesterday (March 15, 2020) and will remain in place through noon on March 31, 2020, subject to extension.
The order temporarily closes bars and nightclubs that do not serve food, movie theaters, entertainment venues, bowling alleys, arcades, gyms and fitness centers.
Restaurants, bars and retail food facilities may not serve food for “dining in”, but may continue to offer food for delivery, takeout or drive-thru. The Mayor also strongly urged houses of worship to limit large gatherings on their premises and observe social distancing practices.
The following establishments within the City of Los Angeles will be temporarily closed to the public:
- Bars and nightclubs that do not serve food;
- Movie theaters and entertainment venues;
- Bowling alleys and arcades; and
- Gyms and fitness centers.
The following restrictions will also apply:
- All restaurants will be prohibited from serving food to dine-in customers, but may continue to prepare and offer food via delivery service or take-out;
- Houses of worship are urged to limit large gatherings on their premises and to explore and implement ways to practice their respective faiths while observing social distancing practices.
The following establishments will continue to operate:
- Grocery stores will continue to operate and there is no shortage of food or interruption in our food supply;
- Cafeterias within hospitals, nursing homes, and similar facilities will continue operations.
The Mayor also ordered a moratorium on evictions of residential tenants during this local emergency period if the tenant is able to show an inability to pay rent due to circumstances related to the COVID-19 pandemic.
What Employers Should Know
Reporting Time Pay
Under normal circumstances, in the event an employee who is scheduled to report to work, and does report to work, but is not put to work or furnished with less than half of their usual or scheduled day’s work because of inadequate scheduling or lack of proper notice by the employer, “reporting time pay” is due to the employee in the amount of half the usual or schedule day’s work, but in no event for less than 2 hours nor more than 4 hours, at the employee’s regular rate of pay.
BUT, reporting time pay is not required when the employer's operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue.
At this time, there is no State or local requirement for a business to provide “paid leave” if that is not a benefit currently offered by the company, or otherwise required by law (i.e., paid sick leave).
However, federal lawmakers are currently working on the Families First Coronavirus Response Act (HR 6201), which would provide:
- Free coronavirus testing.
- Paid emergency leave.
- Enhanced unemployment insurance.
- Additional funding for nutritional programs.
- Protections for health care workers and employees responsible for cleaning at-risk places.
- Additional federal funds for Medicaid.
The House passed the bill yesterday and the Senate is expected to vote on the bill in the coming days. President Trump is expected to sign the bill this week.
Although changes are likely to occur before the bill is signed into law, a summary of the current bill includes, for employers with fewer than 500 employees:
- Amendment of the Family and Medical Leave Act (FMLA) to provide up to 12 weeks of FMLA leave for employees who either have to quarantine themselves, care for a family member who is quarantined, or care for a child whose school has been closed.
Small businesses with fewer than 50 employees can apply for an
exemption through the Department of Labor “when the imposition of such
requirements would jeopardize the viability of the business.”
- A new federal paid sick leave law requiring employers to provide 2 weeks of paid sick leave (up to 80 hours or the equivalent of 2 weeks for part-time employees) for people cannot work for COVID-19 related reasons such as being quarantined, caring for someone who is quarantined, or place of work or child’s school is closed due to COVID-19.
Businesses and self-employed individuals are eligible for a tax credit to
cover sick leave.
We will provide an update on this measure as developments occur.
Paid Sick Leave
All California employers are required to provide paid sick leave either pursuant to California’s Paid Sick Leave laws, or pursuant to any applicable local law/ordinance that may provide even more time off to employees.
For example, employers with operations within the geographic boundaries of the City of Los Angeles must comply with the Los Angeles Minimum Wage Ordinance,either by:
- providing at least 48 hours of paid sick leave to an employee at the beginning of each year of employment, calendar year, or 12-month period (lump-sum/front-loading); or
- providing the employee one hour of sick leave per every 30 hours worked (accrual method).
For employers using the accrual method, accrued unused paid sick leave carries over to the following year of employment and may be capped at 72 hours; however, an employer may set a higher cap or no cap at all.
Additionally, salaried exempt employees must receive his or her full salary for any week in which the employee performs any work, without regard to the number of days or hours worked. This includes situations where the exempt employee is checking emails from home, etc.
Employee Use of Paid Time Off (PTO), Vacation and Sick Leave
Although an employer is required to provide Paid Sick Leave in accordance with applicable law (above), and an employer may provide other time off such as PTO or vacation time, an employee should be given the option to use such time for purposes of leave due to COVID-19, but not required, and in accordance with an employer’s other leave policies.
EDD - Unemployment Insurance (UI), State Disability Insurance (SDI) and Paid Family Leave (PFL)
The EDD is also offering support for people affected by the coronavirus.
- Employees who incur a loss of wages due to a reduced work schedule or temporary closure of their workplace due to COVID-19 may file for unemployment benefits (UI).
- Employees who are sick or quarantined due to having or being exposed to COVID-19 may file for disability insurance benefits (SDI).
- Employees caring for someone who is sick with COVID-19 or quarantined due to being exposed to the virus may apply for paid family leave benefits (PFL).
More information from the EDD is available here.
Governor Newsom has issued an Executive Order giving the EDD discretion to waive the usual 7-day waiting period for:
- Disability insurance applicants who are unemployed and disabled as a result of the COVID-19 and who are otherwise eligible for disability insurance benefits.
- Unemployment insurance applicants who are unemployed as a result of the COVID-19 and who are otherwise eligible for unemployment insurance benefits.
EDD - Work Sharing Program
Employers can also apply for the Unemployment Insurance (UI) Work Sharing Program if reduced production, services, or other conditions cause them to seek an alternative to layoffs.
The Work Sharing Program helps employees whose hours and wages have been reduced:
- Receive UI benefits.
- Keep their current job.
- Avoid financial hardships.
The Work Sharing Program helps employers:
- Minimize or eliminate the need for layoffs.
- Keep trained employees and quickly prepare when business conditions improve.
- Avoid the cost of recruiting, hiring, and training new employees.
Click here for information on how to apply.
CA Department of Industrial Relations FAQ: https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm
CA Labor & Workforce Development Agency Coronavirus 2019 (COVID-19) Resources for Employers and Workers: https://www.labor.ca.gov/coronavirus2019/
To the extent a workplace is continuing operations, see:
What Employers Need To Know
The recent outbreak of Coronavirus Disease 2019 (COVID-19) has caused global concern. There is still a lot that is unknown about the virus, but there are steps employers can take to help prevent workplace exposures to acute respiratory illnesses, including COVID-19.
The U.S. Centers for Disease Control and Prevention (CDC) has provided guidance on recommended practical strategies for employers to help contain the spread of the virus and other acute respiratory illnesses. Ongoing updates about COVID-19 are available at the CDC's web page here.
At this time, employers are advised to implement the following precautions:
- Actively encourage sick employees to stay home
- Employees who have symptoms of acute respiratory illness should stay home and not come to work until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, cough, shortness of breath and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants).
- Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
- Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.
- Separate sick employees and send sick employees home immediately
- Emphasize respiratory etiquette and hand hygiene by all employees
- Place posters that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen.
- Provide tissues and no-touch disposal receptacles for use by employees.
- Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, and wash their hands with soap and water for at least 20 seconds.
- Provide soap and water and hand sanitizer in the workplace. Ensure that adequate supplies are maintained. Place hand sanitizers in multiple locations and in conference rooms to encourage hand hygiene.
- Visit the coughing and sneezing etiquette and clean hands webpage for more information.
- Perform routine environmental cleaning
- Provide disposable disinfectant wipes so that commonly used surfaces (i.e., doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.
- Routinely clean all frequently touched surfaces in the workplace with disinfectant wipes such as workstations, counter tops, and doorknobs.
- Advise employees to take certain steps before traveling
- Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country.
- Advise employees to check for symptoms of acute respiratory illness before traveling and notify their supervisor and stay home if they are sick.
- Ensure employees who become sick while traveling understand that they should notify their supervisor and should promptly call a healthcare provider for advice if needed.
- If outside the U.S., sick employees should follow Company policy for obtaining medical care or contact a healthcare provider or overseas medical assistance company to assist them with finding an appropriate healthcare provider in that country. A U.S. consular officer can help locate healthcare services.
Employee Exposure to COVID-19
Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
In the Event of a COVID-19 Outbreak
The severity of illness or how many people will fall ill from COVID-19 is unknown at this time. If there is evidence of a COVID-19 outbreak in the U.S., employers should plan to be able to respond in a flexible way to varying levels of severity and be prepared to refine their business response plans as needed. For the general American public, such as workers in non-healthcare settings and where it is unlikely that work tasks create an increased risk of exposures to COVID-19, the immediate health risk from COVID-19 is considered low. The CDC and its partners will continue to monitor national and international data on the severity of illness caused by COVID-19, will disseminate the results of these ongoing surveillance assessments, and will make additional recommendations as needed.
All employers need to consider how best to decrease the spread of acute respiratory illness and lower the impact of COVID-19 in their workplace in the event of an outbreak in the U.S. Employers should prepare an Infectious Disease Outbreak Response Plan that identifies and communicates their objectives, which may include one or more of the following: (a) reducing transmission among staff, (b) protecting people who are at higher risk for adverse health complications, (c) maintaining business operations, and (d) minimizing adverse effects on other entities in their supply chains.
Click here for more detailed guidance for employers from the CDC.