On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act, which will go into effect April 2. The new law requires employers with fewer than 500 employees to provide paid FMLA and paid sick leave related to the current pandemic. Below, we address some of the major requirements of the new law.
Paid Sick Leave
Until the bill sunsets on December 31, 2020, certain employers must provide eligible employees with paid sick leave. The law applies to employers with fewer than 500 employees, and exempts employees who are health care providers or emergency responders. The Secretary of Labor has the authority to exclude or exempt employers with fewer than 50 employees, healthcare providers, and emergency responders.
Eligible employees may take paid sick leave for the following purposes:
- 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 seeking a medical diagnosis.
- The employee is caring for an individual who has been ordered or advised to quarantine related to COVID-19.
- 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.
- The employee 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.
Paid sick time is available to eligible employees immediately, with no waiting period. Full-time employees must receive 80 hours of paid sick leave. Part-time employees will receive an allotment of paid sick leave equal to the average number of hours worked over a two-week period. Unused time does not carry over into the next year. Following the first day of use, employees may be required to follow reasonable notice procedures to continue receiving paid sick time.
The law requires that paid sick time be paid at the employee’s regular rate of pay (according to the Fair Labor Standards Act) for leaves due to reasons (1), (2), and (3) above, and 2/3 the employee’s regular rate of pay for reasons (4), (5), and (6). The law imposes daily and cumulative payment caps, which vary depending upon the reason an employee uses paid sick time. Additional guidelines on the pay-rate calculation are forthcoming.
The new law confers certain rights to employees. For example, employers may not require employees to use other paid leave before using paid sick time under the new law or require employees find a replacement for a shift when they are using paid sick time. Employers are prohibited from discharging, disciplining, or discriminating against employees who use paid sick leave, file a complaint, or participate in enforcement of the action.
Employers must post a notice of rights in the workplace, which is expected to be available within the next week.
Expansions to Family and Medical Leave
The bill also expands leave protections under the FMLA by providing up to 12 weeks of job-protected leave (some of which must be paid) to certain employees who need to care for their children because of COVID-19 related school closures and loss of childcare. These amendments are in effect until December 31, 2020.
The Emergency Family and Medical Leave Expansion Act (“E-FMLA”) applies to employers with fewer than 500 employees, although the Secretary of Labor has the authority to exclude or exempt employers with fewer than 50 employees, health care providers, and emergency responders.
To be eligible, employees need to: (1) have been employed for at least 30 days by the employer from whom they seek leave; and (2) be unable to work or telework because of a need to care for their minor child(ren) because of a COVID-19 related closure of the child(ren)’s school or place of care or unavailability of the child(ren)’s child care provider. “Child care provider” is defined to mean a provider who receives compensation for providing child care on a regular basis.
The specifics of E-FMLA leave include:
- Eligible employees are entitled to up to 12 weeks of leave to care for their children because of COVID-19 related school and childcare closures;
- The first 10 days of leave may be unpaid, although employees may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave;
- After the first 10 days, the employer must provide paid leave in an amount not less than two-thirds of the employee’s regular rate of pay (as defined by the FLSA) for the number of hours the employee would otherwise be normally scheduled to work, up to $200/day and $10,000 total;
- For employees who work variable or unpredictable schedules, the employer must use an average number of hours that the employee was scheduled per day over the 6-month period leading up to the leave. If the employee did not work during that time, 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.
- Employees taking E-FMLA leave are entitled to job protection and restoration the same as employees taking any other kind of FMLA leave, although employers with fewer than 25 employees do not need to comply with restoration obligations if:
- The position held by the employee when the leave commenced no longer exists because of economic conditions or business changes caused by COVID-19 during the employee’s 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 within one year (as calculated under the Act).
- Employees needing E-FMLA leave must provide notice of the need for leave as soon as practicable.
Employers operating under multiemployer collective bargaining agreements can fulfill their E-FMLA obligations by contributing to a multiemployer fund, plan, or program in an amount based on the paid leave each of its employees is entitled to, so long as the employees are able to secure appropriate pay from such fund, plan, or program.