Effective April 2, 2020, the Families First Coronavirus Response Act (the “Act”) expands the eligibility and pay requirements of the Family and Medical Leave Act (FMLA) and provides for emergency paid sick leave. These requirements will expire on December 31, 2020. The US DOL has issued guidance on the Act which you can find here:
Additionally, the Act provides additional unemployment insurance funds to states who adhere to certain requirements such as mandating that employers notify employees of available unemployment compensation, waiving the waiting period and waiving work search requirements.
Emergency Paid Sick Leave Act
Private employers that employ fewer than 500 employees must provide 80 hours of Emergency Paid Sick Leave to full-time employees and a pro-rated amount to part-time employees who are unable to work because of certain reasons related to COVID-19.
If an employee is unable to work for any of the following reasons related to their own COVID-19 condition, the employee is entitled to paid sick leave at their regular rate, capped at $511 per day ($5,110 in the aggregate):
- 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; or
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
If an employee is unable to work for any of the following reasons, the employee is entitled to paid sick leave at 2/3 of their regular rate, capped at $200 per day ($2,000 in the aggregate):
- The employee is caring for an individual who is subject to a quarantine or isolation order or health care provider advisory;
- The employee is caring for their child if their child’s school or place of care has been closed, or their child care provider 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.
Unused emergency sick leave will not carry over into the next year and employers are not required to pay employees for unused emergency sick leave at separation. Employers may not require employees to use other available leave prior to using emergency sick time and are prohibited from retaliating against employees who utilize such leave.
Emergency Family and Medical Leave Expansion Act
The Act also temporarily amends and expands the FMLA for all employers with fewer than 500 employees.
The Act permits eligible employees to take up to 12 weeks of job-protected leave when the employee is unable to work due to a need for leave to care for their son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider is unavailable, due to the current public health emergency (“Emergency FMLA Leave”). Employees are eligible for such leave if they have worked for a covered employer for at least 30 days.
The first 10 days of Emergency FMLA Leave are unpaid, although employees may substitute other available paid time off, including emergency paid sick time. After the first 10 days, the employee must be paid at a rate that is at least 2/3 of their regular rate of pay multiplied by the number of hours they would otherwise be normally scheduled to work, capped at $200 per day per employee ($10,000 in the aggregate).
Small employers with fewer than 50 employees may seek an exemption from the expanded FMLA requirements by application to the Secretary of Labor if the employer can show that compliance with the Act would jeopardize the business.
Tax Credits
Employers who provide Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave in accordance with the Act are eligible to receive refundable tax credits against their payroll taxes in an amount equal to 100% of qualified leave paid by the employer for each calendar year.
* * *
If you have questions or would like additional information, please contact EGS’s Employment Law Practice Group Leader, Amanda M. Fugazy at
afugazy@egsllp.com
or the primary EGS attorney with whom you work.
