On March 18, 2020, President Trump signed the
Families First Coronavirus Response Act
. The Act provides, among other benefits, paid and unpaid leave to employees who are unable to work for reasons related to COVID-19. The Act also provides tax credits for employers who are required to make payments under this new law.
Two parts of the law, the "Emergency Family and Medical Leave Expansion Act" and the "Emergency Paid Sick Leave Act," summarized below, make significant short-term changes to benefits that employers must provide to employees.
Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act requires employers with fewer than 500 employees to provide eligible employees with job-protected paid and unpaid leave for a "qualifying need" during a "public health emergency."
Employees are defined as anyone who has been employed by the employer for at least 30 calendar
Employers may exclude employees who are health care providers or emergency responders.
A "qualifying need" means the employee cannot work or telework due to a need to care for a minor son or daughter whose elementary school, secondary school or childcare is closed, or child care provider is unavailable, due to a "public health emergency."
A "public health emergency" means an emergency with respect to COVID-19 declared by a federal, state or local authority.
The total amount of leave available is the 12 weeks provided by the Family and Medical Leave Act ("FMLA"), which is expanded by this new law.
The first 10 days are unpaid leave. Employees may choose to take any accrued and unused paid time off during this time.
After 10 days, the employer must provide paid leave. The amount must be not less than two-thirds of the employee's regular rate of pay, subject to a cap of $200 per day ($10,000 in the aggregate).
If the leave is foreseeable, an employee must provide notice of the leave as soon as practicable.
The Secretary of Labor is authorized to issue exclusions for health care providers and emergency responders, and for small businesses (with fewer than 50 employees) under certain circumstances. Employers who would not otherwise be required to provide FMLA leave (that is, employers with fewer than 50 employees in a 50-mile radius) are excluded from civil damages in a lawsuit by employees for violation of this Act. Employers with fewer than 25 employees may not be required to restore employees to the same (or similar) position after leave, if certain conditions are met.
The Emergency Family and Medical Leave Expansion Act will go into effect within 15 days after enactment and will expire on December 31, 2020.