Last week, President Trump signed the
Families First Coronavirus Response Act.
The purpose of the law is to provide relief to employees who are displaced by issues surrounding the coronavirus (COVID-19) outbreak. There are two key components of the law: (1)
Emergency Paid Sick Leave
for certain employees who are unable to work or telework; and (2) expansion of the
Family Medical and Leave Act (“FMLA”
) for certain employees. Just this week, the U.S. Department of Labor (DOL) issued much needed guidance
on many of the nuances of the law. However, many questions remain unanswered. We are monitoring developments on a daily basis and will publish further updates from time to time.
Below is a Q & A that summarizes some of the key provisions of the new law.
Q: When is the New Law Effective?
The bill becomes effective on April 1, 2020 and expires on December 31, 2020. However, the DOL has stated it will not bring enforcement actions against any employer for violations of the Act occurring through April 17, 2020, provided the employer has made reasonable, good faith efforts to comply with the Act. After April 17, 2020, the DOL will fully enforce violations of the Act.
Q: What Employers are Covered?
Private employers with "
fewer than 500 employees
" and public employers are covered under the new law. An employer is considered to have fewer than 500 employees if, at the time of the employee's leave is to be taken, the employer employs fewer than 500 full-time and part-time employees anywhere within the United States (including the District of Columbia and in any Territory or possession of the United States). Notably, employees on leave, temporary employees who are jointly employed, and day laborers supplied by a temporary agency are included in the count.
Q: Are Small Employers Exempt?
No. Under the new law, the Secretary of Labor has the authority to issue regulations to exempt small businesses with fewer than 50 employees, for good cause, such as when the imposition of such requirements would "jeopardize the viability of the business as a going concern". At this time, It is unclear whether the Secretary of Labor will issue these regulations or if employers would need to petition the Secretary of Labor for an exemption.
Q: How Much Emergency Paid Sick Leave Must an Employer Provide?
Covered employers must provide an eligible employees with up to eighty (80) hours of paid sick leave.
Q: Which Employees are Eligible for Emergency Paid Sick Leave?
All employees of a covered employer are eligible, regardless of how long they have been employed. An employer may not require an employee to use other paid leave before accessing the new emergency paid sick leave. Nor may a covered employer reduce existing sick leave benefits because employees are now entitled to emergency paid sick leave.
Q: For what Reasons May an Employee Take Emergency Paid Sick Leave?
Any full or part time employee may take leave
emergency paid sick leave
for any one of the following reasons:
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 (1) is subject to a Federal, State or local quarantine or isolation order, or (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
The employee is caring for a son or daughter if the school or place of care has been closed or the child care provider is unavailable due to COVID-19
The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in Consultation with the Secretary of Treasury and Labor.
The new DOL guidance states that if an employer closes or does not have work for an employee because the work-site closed pursuant to a Federal, State, or local directive (such as California’s “Safer at Home” directive) emergency paid sick leave would not be available to the employee.
Q: Can Part-Time Employees Receive Emergency Paid Sick Leave?
full time and part time employees may receive this benefit. For full time employees, the benefit is 80 hours. Part time employees receive paid time off based upon the average number of hours worked over a two week period.
How Much Must I pay Employees who are Eligible for these Emergency Sick Leave Benefits?
For qualifying events #1 – 3 above, the employer must pay the employee up to 80 hours of pay based upon the greater of his or her regular rate of pay or the applicable Federal, State or local minimum wage (maximum payment is $511 per day and $5,110 in the aggregate).
For qualifying events #4 – 6 above, the employer must pay up to 80 hours of pay, at 2/3rds of the employee's regular rate of pay or the applicable Federal, State or local minimum wage (maximum up to $200 per day and $2,000 in the aggregate).
Q: What is the Emergency Family and Medical Leave Expansion Act?
This new law
significantly amends and expands the FMLA until December 31, 2020. It provides job protected paid time off for parents who must take time off to care for their child because of a COVID-19-related closure of a school or child care facility.
Q: Which Employees are Eligible for this New Paid Emergency FMLA Benefit?
An ‘eligible employee’ is one who has been employed for at least 30 calendar days prior to requesting the new paid time off benefit.
Q: Which Employers are Covered?
The new law uses the same definition of "covered employer" as the Emergency Paid Sick Leave Act explained above.
Q: For What Reasons may an Employee Take Emergency Family Medical Leave?
This new paid Family Leave Benefit is reserved for a "parent" who is unable to work (or telework) and must care for a child who is home from school (elementary or secondary school only) or daycare because the facility shut down during this current public health emergency. The new law has an expansive definition of who can qualify as a "parent."
Q. Who Qualifies as a "Parent" for this Special Paid Emergency Family Leave Benefit?
‘Parent’, means any of the following:
- A biological, foster, or adoptive parent of the employee;
- A stepparent of the employee;
- A parent-in-law of the employee;
- A parent of a domestic partner of the employee; or
- A legal guardian or other person who stood in loco parentis to an employee when the employee was a child.
Q: How much Emergency Family Leave must an employee be given?
Up to a maximum of 12 weeks.
Q: Is the Employer required to Pay for the Emergency Family Leave?
Yes. The law provides that the first 10 days of Emergency FMLA may be unpaid. However, as a practical matter, employees who qualify for this leave will also qualify for the new Emergency Paid Sick Leave (explained above). Covered employers must pay eligible employees no less than 2/3rds the employee's regular rate of pay for the first 80 hours (maximum $200 per day or $2000 in the aggregate). For the remaining 10 weeks, the employees must be paid up to 2/3 of their regular rate of pay for the number of hours the employee would normally be scheduled to work (maximum $200 per day and $10,000 in the aggregate). The Act provides other formulas for employees with schedules that vary from week to week.
Q: Must an Employer Provide Notice to Employees of These New Benefits?
Yes. There are three notice requirements. First, a copy of the notice found here
Q: Will the Government Help Employers Pay for These New Benefits?
Yes. The new law provides
employers with tax credits, against the employer's portion of Social Security taxes, for providing both emergency paid sick leave and emergency FMLA. In addition, employers may also qualify for a tax credit for certain health plan expenses. Please consult your tax professional regarding tax credits, potential reimbursements and related issues.
We will continue to monitor developments surrounding COVID-19 as they pertain to employers and will provide updates as appropriate. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700, or visit us online at www.brgslaw.com.
Richard S. Rosenberg
Katherine A. Hren
Ballard Rosenberg Golper & Savitt, LLP