On March 18, 2020, the Families First Coronavirus Response Act, which includes the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act was passed and will become effective no later than April 2, 2020.
Quick Facts about the Emergency Family and Medical Leave Expansion Act
- It adds FMLA coverage relating to a public health emergency and
- Coverage for employee unable to work (or telework) due to a need for leave to care for a child under 18 if:
(1) the school or place of care has been closed, or
(2) the child care provider of such child is unavailable, in each case due to a public health emergency.
- For this FMLA, after the first 10 days of unpaid leave (which an employee may elect to substitute for paid leave using its leave time), employers must provide paid leave for the remaining FMLA period.
- The policy applies to all employers with fewer than 500 employees.
- The Secretary of Labor may exempt small businesses with fewer than 50 employees when the imposition of the policy would jeopardize the viability of the business.
- The law does not apply to employers with 500 or more employees.
- It applies to any employee employed for at least 30 days when leave is requested.
- These provisions do not expand the total number of weeks of FMLA available beyond 12 weeks.
- Paid leave must be provided in an amount that is not less than two-thirds of the employee’s regular rate of pay and the number of hours the employee would otherwise normally be scheduled to work.
- Benefits are capped at $200 per day and $10,000 in the aggregate.
- The Emergency Family and Medical Leave Expansion Act does not address the availability of intermittent leave. While it would appear that leave on an intermittent basis likely is permissible, we will wait for further guidance from the U.S. Department of Labor.
- Job restoration requirements apply to most FMLA leave for a public health emergency but, job restoration requirements do not apply for employers with fewer than 25 employees if:
The employee takes leave for a public health emergency;
The position held by the employee when the leave commenced does not exist 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 a position equivalent to the position the employee held with equivalent benefits, pay and other terms and conditions of employment; and
If such reasonable job restoration efforts fail, the employer makes reasonable efforts to contact the employee for one year following the earlier of the date on which the employee’s leave concludes or 12 weeks after the date on which the employee’s leave commences.
- Secretary of Labor or the employer of healthcare providers or emergency responders may elect to exclude such an employee from the application of FMLA leave for a public health emergency.
- The expanded FMLA benefit expires on December 31, 2020.
Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave Act requires employers with fewer than 500 employees to provide all employees paid sick leave, which may be used in the following circumstances:
- The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19 (most likely a shelter-in-place order);
- The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeks a medical diagnosis;
- The employee is caring for an individual who is subject to an order described in item 1 or has been advised to self-quarantine as in item 2;
- The employee is caring for his or her child/children if the school or place of care of the child has been closed, or the child care provider of such child is unavailable, due to COVID-19 precautions; or
- 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.
- Employers with 500 or more employees are not subject to the Emergency Paid Sick Leave Act.
- The Secretary of Labor may exempt small businesses with fewer than 50 employees if the policy would jeopardize the viability of the business.
- The Secretary of Labor, an employer of a healthcare provider or emergency responder may elect to exclude such employee from paid sick leave.
- Full-time employees are entitled to 80 hours of paid sick leave (10 work days) 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.
- Depending on the reason for the sick leave, there is a cap at $511 per day and $5,110 in the aggregate or $200 per day and $2,000 in the aggregate.
- Paid sick leave must be provided in addition to other paid leave an employer provides
- Employees cannot be required to use other paid leave prior to using paid sick leave
- Employers are required to post and keep posted a notice to be prepared by the Secretary of Labor.
- Employers are prohibited from retaliating against employees who use paid sick leave.
- Violations of the paid sick leave requirements are viewed as violations of the minimum wage requirements of the Fair Labor Standards Act (FLSA), subjecting an employer to the remedies under the FLSA, which include, among other things, liquidated damages and attorneys’ fees.
- The paid sick leave benefit expires on December 31, 2020.
Employers Can Expect:
An influx of FMLA and paid sick leave requests when the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act become effective.
A refundable tax credits against the employer’s portion of the quarterly Social Security tax payments for payments made in each quarter for paid FMLA leave and paid sick leave taken under the new law.
The amount of the tax credit is generally equal to 100 percent of the qualified sick leave wages and qualified family leave wages paid by the employer with respect to the calendar quarter, up to a per-employee cap of $511 per day for qualified sick leave wages and $200 per day for qualified family leave wages.