The Families First Coronavirus Response Act, signed into law on March 18, 2020, combined several different bills that had been proposed in response to the coronavirus. Two of those constituent bills, the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act, as scheduled to take effect April 1, 2020, and will significantly expand paid leave under federal law. As such, it is important for employers to know their obligations under the new law.

Emergency Family and Medical Leave Expansion Act

These provisions will expand leave available under the Family and Medical Leave Act of 1993 ("FMLA"). The law applies to all public employers and any private employer with less than 500 employees, and covers any worker who has been employed for 30 days (down from the FMLA's usual 12 months and 1,250 hours).

The law requires employees be granted leave when unable to work (or telework) due to the need to care for a child whose elementary school, secondary school, or place of care has been closed, or a paid “child care provider” is unavailable, due to a “public health emergency," i.e. COVID-19. This leave is unpaid, though employers may allow employees to substitute any accrued, unused vacation leave, personal leave, or medical or sick leave.

After 10 days of such leave, an employee qualifies for paid leave of not less than two-thirds of the employee’s regular rate of pay multiplied by the number of hours the employee is normally scheduled to work on that day. The amount of benefits payable to an individual employee is capped at $200 per day and $10,000 total. Employers will be eligible to apply for tax credits each calendar quarter to offset the qualified family leave wages paid to eligible employees. 

Emergency Paid Sick Leave Act

These provisions establishes a new paid leave program that supplements the leave available under the FMLA, and applies to the same pool of employers (public employers and any private employer with less than 500 employees). Qualified full-time employees will be eligible for up to 80 hours of pay, while part-time workers are eligible to receive pay for up to the average number of hours that they work over a two-week period. Notably, this covers the same 10-day period that would otherwise be unpaid under the FMLA. In addition, unlike the FMLA, there is no minimal work period before an employee qualifies for paid leave.

Employers must provide paid leave under the following circumstances:

(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 health care provider to self-quarantine;
(3) The employee has symptoms of COVID-19 and seeking a medical diagnosis;
(4) The employee is caring for an individual that meets items 1 and 2, above;
(5) The employee is caring for a child under circumstances discussed above; or
(6) The employee is experiencing any other “substantially similar condition” specified by designated federal officials.

Employees are paid the greater of their regular rate of pay, the federal minimum wage, or the applicable state or local minimum wage, but employees covered under items 4, 5, or 6, above, only receive two-thirds of this amount. In addition, benefits per employee are capped at $511 per day and $5,110 in the aggregate for leave provided under categories 1, 2, and 3 above, and at $200 per day and $2,000 in the aggregate for leave provided under categories 4, 5, and 6 above.