UPDATED: Families First Coronavirus Response Act: Paid Sick and Family Leave for COVID-19 Absences

This post was updated March 26 based on subsequent DOL guidance. Updates are shown in red. 

Congress enacted the Families First Coronavirus Response Act (H.R. 6201) to provide emergency family and medical leave broader than the current Family and Medical Leave Act (FMLA) and paid sick leave to certain employees affected by COVID-19, as well as other provisions to help individuals and businesses handle impacts of the pandemic. It was signed into law shortly after its passage by the Senate on March 18, 2020. The new law will take effect on April 1, 2020 and expire on December 31, 2020.

The new leave provisions of the Families First Coronavirus Response Act are summarized below under their respective Acts.

Emergency Family and Medical Leave Expansion Act

New Expanded Family and Medical Leave: The Emergency Family and Medical Leave Expansion Act (EFMLEA) amends the FMLA to provide up to 12 weeks of job-protected paid leave for employees who are unable to work or telework because they need to care for a minor son or daughter if the child’s elementary or secondary school or place of care has been closed or the child care provider of the son or daughter is unavailable, due to a public health emergency with respect to COVID-19 declared by a Federal, State, or local authority. The leave may be taken between April 1 and December 31, 2020. (Note: this is the only form of FMLA leave that is required to be paid).

Covered Employers: Private employers with fewer than 500 employees at the time leave is taken and government employers are covered.  (Note: this is unlike other FMLA leave that requires 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year)

Eligible Employees: Employees who have been employed by the employer for at least 30 calendar days are eligible.

Rate of Pay:

  • The first 10 days of this leave may be unpaid.
  • After 10 days of leave, employees are paid at two-thirds of their regular rate for the usual number of scheduled hours. Special calculations are provided for employees who work variable hours.
  • Employees may choose to substitute accrued employer provided vacation, personal, medical or sick leave during the first 10 days of leave.
  • Payments made to employees for public health emergency leave are capped at $200 per day and $10,000 in the aggregate.

Notice:  In any case where the necessity for public health emergency leave is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.

Restoration to Position: As with other FMLA leaves, employees must be restored to the  same or equivalent position at the end of leave, except employers with fewer than 25 employees are not required to restore the employee to the same or equivalent position at the end of leave if the employee’s position no longer exists due to economic or operating conditions caused by the coronavirus emergency and the employer makes reasonable efforts to restore the employee to an equivalent position at the time and over a one-year period.

Exclusions and Exemptions:

  • Employers of employees who are healthcare providers or emergency responders may elect to exclude such employees from eligibility for paid leave.
  • The Secretary of Labor may exempt small businesses with fewer than 50 employees in certain dire circumstances.
  • To elect this small business exemption, employers should document why their businesses with fewer than 50 employees meet the criteria set forth by the U,S, Department of Labor (DOL), which will be addressed in more detail in forthcoming regulations.
  • Employers should not send any materials to the DOL when seeking a small business exemption for expanded family and medical leave
  • The DOL is to promulgate regulations that will address the process for requesting an exemption, as well as other issues.

Employer Liability: Employers with fewer than 50 employees are exempt from private lawsuits alleging violations of the EFMLEA, but such employers would still be subject to actions by the Secretary of Labor. Individual liability and successor liability still apply.

Emergency Paid Sick Leave Act

New Paid Sick Leave:

  • Covered employers are required to provide full-time employees with 80 hours of paid sick leave when the employee cannot work or telework for one of the following specified circumstances related to COVID-19, which we are colloquially referring to as a “Group 1” and “Group 2” triggering events because of the difference in pay requirements between the two groups:

Group 1

  1. subject to a government quarantine or isolation order related to COVID-19;
  2. advised by healthcare providers to self-quarantine due to COVID-19;
  3. experiencing symptoms of COVID-19 and seeking a medical diagnosis;

Group 2

  1. caring for an individual subject to a government quarantine order or advised by a healthcare provider to self-quarantine;
  2. caring for a son or daughter if the son or daughter’s school or place of care is closed or their child care providers are unavailable due to COVID-19 precautions; or
  3. experiencing substantially similar conditions as those specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
  • Part-time employees meeting the requirements above are entitled to the number of hours of paid sick time equal to the number of hours they work, on average, over a two-week period.
  • The amount of paid sick time available to an employee is determined by the number of hours the employee would otherwise be normally scheduled to work, with the number of hours available to employees with varying schedules determined in the same manner as under the EFMLEA.
  • Employers may not require that employees search for or find a replacement employee to cover the hours during the employee’s use of emergency paid sick time.
  • Paid sick time terminates with the beginning of the next shift immediately following the termination of the need for paid sick time.
  • Paid sick time is not required to be paid out at termination of employment.
  • Paid sick time may be taken between April 1 and December 31, 2020.

Covered Employers: Private employers with fewer than 500 employees and government employers are covered.

Eligible Employees: All employees who meet the criteria above regardless of length of employment are eligible for emergency paid sick leave.

Rates of Pay:

  • Where the employee takes leave for a “Group 1” reason, the amount of federal emergency sick pay is the greatest of the regular rate of pay, minimum wage under the Fair Labor Standards Act (FLSA), or the state or local minimum wage, and the paid leave is capped at $511 per day, with $5,110 in the aggregate.
  • When the employee takes leave for a “Group 2” reason, the paid leave rate is 2/3 of the greatest of the amounts above, and is capped at $200 per day, with $2,000 in the aggregate.
  • Note: If an employee is taking expanded family and medical leave, the employee may take paid sick leave for the first ten days (2 weeks) of that leave period, or the employee may substitute any accrued vacation leave, personal leave, or medical or sick leave the employee has under an employer’s policy. For the following ten weeks, the employee will be paid for leave at an amount no less than 2/3 of your regular rate of pay for the hours normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, the employee will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave (capped at $2,000) and expanded family and medical leave (capped at $10,000) when the employee is on leave to care for the employee’s child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

Notice:

  • After the first workday (or portion thereof) for which an employee receives paid sick time, an employer may require the employee to follow reasonable notice procedures to continue receiving such leave.
  • The Secretary of Labor promulgated model notices regarding emergency paid sick leave, which must be posted by employers.  See our blog post for more information.

Employers with Existing Leave Policies:

  • Federal emergency paid sick leave is in addition to whatever sick leave is already offered by employers (including subject to state or local requirements).
  • Employers may not require employees to use employer provided paid leave before employees use new federal paid sick time.
  • There is no specific provision preventing employers from changing their leave programs after the law goes into effect, which is contrary to an earlier version of the bill.

Exclusions and Exemptions:

  • Employers of employees who are healthcare providers or emergency responders may elect to exclude such employees from eligibility for paid sick leave. (Note: the term “healthcare provider” is a defined term with a specialized meaning. See our recent post discussing that issue. 
  • The Secretary of Labor is empowered to exempt small businesses with fewer than 50 employees under certain dire circumstances.

Employer Liability: A violation of the Emergency Paid Sick Leave Act, including discriminating (or retaliating) against an employee for taking paid sick leave, filing a complaint, instituting a proceeding, or testifying or preparing to testify in any such proceeding, is equivalent to a violation under the FLSA, and is subject to the same remedies: damages, an equal amount as liquidated damages, attorneys’ fees, costs, and injunctive relief or reinstatement.

For more information about federal and state actions implemented to help businesses through the pandemic, including tax credits related to the new paid leaves, see our Business & Tax Blog.  And please stay tuned to our blog, including our general FAQ post about COVID-19, which will be updated periodically to reflect new agency guidance and legislation. For particular questions, we are available to help employers navigate through these turbulent times.

Williams Parker has launched a multidisciplinary task force of lawyers across the firm to advise on issues arising from the Coronavirus and to provide guidance for affected clients. This team is closely monitoring legal developments and guidance from federal, state, and local government and public health officials. For the latest updates, please visit our website.

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557