Emergency Paid Leave and FMLA Expansion
On March 18, 2020, President Trump signed an emergency bill, entitled the Families First Coronavirus Response Act, to expand family and medical leave as well as guaranteed paid sick leave for certain U.S. workers, including those employed by private entities or individuals who employ fewer than 500 employees.
 
The bill takes effect April 2, 2020, and it will sunset on Dec. 31, 2020.
 

We have outlined the key takeaways below.
FMLA Expansion
·        The Act significantly amends and expands FMLA on a temporary basis. The current employee threshold for FMLA coverage would change from only covering employers with 50 or more employees to instead covering those employers with  fewer than 500 employees . It also lowers the eligibility requirement such that any employee who has worked for the employer for at least 30 days prior to the designated leave may be eligible to receive paid family and medical leave .
 
·      The bill has two separate provisions that impact private entities and individuals that employ fewer than 500 employees. First, it amends the FMLA to allow U.S. workers, including those employed by such entities, to take up to 12 weeks of job-protected leave if the employee is unable to work or telework due to a need to care for a child under 18 years of age because that child’s school or place of care has closed or the child’s child care provider is unavailable due to a public health emergency with respect to COVID-19.
 
·      The first 10 days of the emergency FMLA leave may consist of unpaid leave, but the employee must be paid for each subsequent day of leave. That payment would be calculated based on the number of hours the employee would normally be scheduled to work, and would not be less than two-thirds the employee’s regular rate of pay. But the bill provides that this amount will not exceed $200 per day and $10,000 “in the aggregate.”
 
·       Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA leave. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation at hiring of the average number of hours the employee would normally be scheduled to work. 
 
·       Employers with 25 or more employees will have the same obligation as under traditional FMLA leave to return any employee who has taken Emergency FMLA leave to the same or equivalent position upon the return to work. However, employers with fewer than 25 employees are generally excluded from this requirement if the employee’s position no longer exists following the Emergency FMLA leave due to an economic downtown or other circumstances caused by a public health emergency during the period of Emergency FMLA leave. This exclusion is subject to the employer making reasonable attempts to return the employee to an equivalent position and requires an employer to make efforts to return the employee to work for up to a year following the employee’s leave.

Sick Leave
·      Second, the bill mandates that employers with fewer than 500 employees provide paid sick time to workers. This applies if the worker is sick with or has been quarantined due to COVID-19, is experiencing symptoms of the disease and is seeking medical attention, or is caring for a child in the event of a school closure or unavailable childcare provider, among other situations. Full-time employees are entitled to 80 hours of such leave, while part-time employees are entitled to time equal to the number of hours they work on average over a two-week period. The leave doesn't carry over from one year to the next.
 
·      An employer may not require, as a condition for providing the paid sick time, that an employee search for or find a replacement to cover for the hours during which the employee is using the paid sick time. The payment is calculated based on the employee’s “required compensation” (i.e. the employee’s regular rate of pay or the federal, state or local minimum wage, whichever is greater) and the number of hours the employee would otherwise be scheduled to work. Pay standards differ in certain situations, such as if an employee is using the time to care for a family member.
 
·       The Act places limits on paid sick leave. Specifically, paid sick leave wages are limited to $511 per day up to $5,110 total per employee for their own use and to $200 per day up to $2,000 total to care for others and any other substantially similar condition.
 
·       Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking paid sick leave. Employees who have worked for less than six months prior to leave are entitled to the average number of hours the employee would normally be scheduled to work over a two-week period. A business employing fewer than 500 employees is required, at the request of the employee, to pay a full-time employee for 80 hours of mandated emergency paid sick leave instead of the initial 10 days of unpaid leave permitted by the Emergency Family and Medical Leave Expansion Act (summarized above).
 
·      As with the expanded FMLA provision, the Act now includes language allowing the Secretary of Labor to exclude healthcare providers and emergency responders from the definition of employees who are allowed to take such leave, and to exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business. 

Tax Credits
·    The bill stipulates that tax credits are available to employers providing the paid FMLA leave or paid sick leave. 

The Zarwin Baum Employment Law Group , Dave McComb and Zachary Silverstein,
is happy to discuss these and any employment law questions: 
Dave McComb (dfmccomb@zarwin.com) 
Zachary Silverstein (zsilverstein@zarwin.com)