03/19/2020
FAMILIES FIRST CORONAVIRUS RESPONSE ACT-PROVISIONS RELATED TO EMPLOYERS
On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (“Act”) to address issues related to the Coronavirus (“COVID-19”) outbreak.
From an employer’s standpoint, there are two major provisions in the Act related to employee leave, discussed below.
1. Emergency Family Medical Leave Act
The Emergency Family and Medical Leave Expansion Act, which amended the Family and Medical Leave Act of 1993 (“FMLA”), as follows:
• It established an additional ground for leave under the FMLA using the term “qualifying need related to a public health emergency” (“Emergency Leave”) which is defined as follows:
o “The employee is unable to work (or telework) due to a need for leave to care for the son or daughter under eighteen (18) years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”
o It defines a “public health emergency” as “an emergency with respect to COVID-19 declared by a Federal, State or local authority.”
• It expanded the definition of an “eligible employee” under the FMLA for purposes of leave related to Emergency Leave to an employee who has been employed for at least thirty (30) calendar days by the employer.
• It expanded the definition of “employer” subject to the Emergency Leave requirement from fifty (50) or more employees to “fewer than five-hundred (500) employees for each working day during each of twenty (20) or more calendar work weeks in the current or preceding calendar year.” This essentially makes the Emergency Leave provisions applicable to all employers, except those with five-hundred (500) or more employees.
• The Secretary of Labor has authority to issue regulations for good cause that may exclude certain health care providers and emergency responders from the definition of “eligible employee” and to exempt small businesses with fewer than fifty (50) employees from the Emergency Leave requirements when the imposition of such requirements would jeopardize the viability of the business as a going concern.
• The first ten (10) days for which an employee takes Emergency Leave under the FMLA may consist of unpaid leave, but the employer is required to provide paid leave for each day of Emergency Leave that an employee takes after said ten (10) days. This paid leave is calculated based on two-thirds (2/3) of an employee’s regular rate of pay times the number of hours the employee otherwise would be normally scheduled to work, but in no event shall such paid leave exceed $200.00 per day and $10,000.00 in the aggregate. If an employee’s hours vary from week to week, there is a different method of calculation.
• An employee who takes such leave has the right to restoration to his or her position, with some exceptions. You should examine the Act in more detail in regard to restoration rights if that issue arises.
• The Act shall take effect not later than fifteen (15) days after March 18, 2020.
2. Emergency Paid Sick Leave Act
The Act also includes “Emergency Paid Sick Leave Act,” which requires all employers to provide to each employee paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:
1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to an order as described above in paragraph 1, or has been advised as described above in paragraph 2.
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
6. The employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
• The definition of employer and employee are very broad, except a “covered employer” does not include a private entity that employs five-hundred (500) or more employees. There is no requirement that the employee work at the employer for a certain period of time as there was with the Emergency Leave provision.
• The employer of an employee who is a healthcare provider or an emergency responder may elect to exclude paid sick time to that employee from the application of this provision.
• Full-time employees are entitled to eighty (80) hours of paid sick time, and part-time employees are entitled to a number of hours equal to the number of hours that such employee works, on average, over a two-week period.
• In addition, with respect to any paid sick time described in paragraphs 4 – 6, the employee required compensation shall be two-third’s (2/3) of the amount of his or her regular rate of pay.
• The employee’s right to paid sick time terminates beginning with the employee’s next scheduled work shift immediately following the termination of the need for paid sick time described above.
• An employer cannot require as a condition to providing paid sick time that the employee find a replacement employee to cover his or her hours.
• The employee has the right to first use this paid sick time for the qualifying purposes before using any other paid leave.
• All employers are required to post a notice regarding this provision, and the Secretary of Labor is required to make publicly available a model notice no later than seven (7) days after enactment of the provisions.
• The limits on this paid sick time are $511.00 per day and $5,110.00 in the aggregate for the reasons stated in paragraphs 1 – 3 above, and $200.00 per day and $2,000.00 in the aggregate for the reasons stated in paragraphs 4 – 6 above.
• The Secretary of Labor has authority to issue regulations that exclude certain health care providers and emergency responders from the definition of employee including allowing the employer of same to opt out, and exempting small businesses with fewer than fifty (50) employees when imposition of the requirements would jeopardize the viability of the business as a going concern.
3. Tax Credits
Finally, the Bill makes available certain tax credits for paid sick leave and paid family and medical leave, and we refer you to the Act or your tax professional for more detail regarding those provisions.
The above is only a general summary of the key provisions, and you should review the full text of the law for a completed understanding of the provisions and how they may apply to you. If you have any questions regarding the application of these new laws to your business or existing policies, feel free to contact us.
