The Families First Coronavirus Response Act (the “Act”), signed by President Trump on March 18, 2020, contains two significant provisions regarding leave associated with COVID-19. First, the Act provides employees with up to 80 hours of paid sick leave. Second, the Act expands the Family and Medical Leave Act (“FMLA”) to include up to 12 weeks of job-protected leave to care for children due to a school closure. Generally, the leave provisions apply to employers with less than 500 employees. The provisions take effect April 2, 2020 and expire on December 31, 2020.
Emergency Paid Sick Leave
The Act requires employers with fewer than 500 employees to provide up to 80 hours of paid sick leave benefits to any employee who:
- is under 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 COVID-19;
- is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- is caring for an individual under a quarantine order or who had been advised by a medical provider to self-quarantine;
- is caring for a son or daughter whose school or place of care has been closed due to COVID-19; 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 Secretary of labor.
Under the Act, full-time employees are entitled to 80 hours of paid leave; part-time employees receive leave on a pro-rated basis. If the employee takes leave for reasons 1-3 (in other words, sick or quarantined individuals), the employee is entitled to 100% of normal wages, subject to a benefits cap. If the employee takes leave for reasons 4-6 (in other words, those caring for others), the employee is entitled to 2/3 of the employee’s normal wages, subject to a benefits cap.
For leave taken for reasons 1-3, the Act limits the employer’s obligation to $511 per day, $5,110 in the aggregate. If leave is taken for reasons 4-6, the Act limits the employer’s obligation to $200 per day, $2,000 in the aggregate.
Under the Act, employers cannot:
- require an employee to use other paid leave first;
- require an employee to find a replacement to cover his or her scheduled hours; or
- retaliate against an employee who takes leave under the Act, or participates in a proceeding related to the Act.
Paid sick leave under the Act is available immediately after the Act takes effect, regardless of how long the employee has been employed.
Emergency Family and Medical Leave Expansion
The Act temporarily amends the FMLA to allow covered employees to take up to 12 weeks of FMLA leave when they cannot work–either on-site or remotely–because their minor son or daughter’s school or child care is closed due to a public health emergency. Under the FMLA, “son or daughter” includes a biological, adopted, or foster child; a stepchild; a legal ward; or a child of a person taking the place of a parent. A “public health emergency” is “an emergency with respect to COVID-19 declared by a Federal, State, or local authority.” To be eligible, the employee must have been employed for at least 30 days prior to the leave request.
The first ten days of the leave are unpaid. The employee, however, may choose to use existing vacation or sick time during this period. The next 10 weeks must be paid at a rate of two thirds the employee’s regular rate of pay, for the same number of weekly hours the employee would be normally scheduled to work. For employees with varying schedules, the Act directs employers to calculate the hours to be paid by using the average number of hours the employee was scheduled per day during the previous six months. If the employee has not been employed for six months, the employer should use “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.”
Benefits under the expanded FMLA provisions are capped at $200 per day, or $10,000 in the aggregate.
Generally, this leave is job protected, except in the situation where the employer has less than 25 employees and:
- the employee’s position no longer exists “due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during the period of leave”;
- the employer makes reasonable efforts to restore the employee to an equivalent position; and
- if those efforts fail, the employer makes reasonable efforts to “contact the employee if an equivalent position…becomes available” at any point in the next 12 months.
The Act grants the Secretary of Labor authority to issue regulations exempting employers with fewer than 50 employees if providing the paid sick leave and emergency family and medical leave “would jeopardize the viability of the business.” We are waiting for guidance from the Department of Labor on the scope and applicability of this exemption.
Employers should note that, subject to some exceptions, the Act provides employers with a tax credit for amounts paid for both types of leave.
Additional questions can be directed to any member of the Firm’s Labor and Employment Practice Group here.