FAMILIES FIRST CORONAVIRUS RESPONSE ACT
(H.R. 6201; Passed: 3/18/2020; No. 116-127)
The Families First Coronavirus Response Act became law on March 18, 2020, and includes, among other things:
1. Emergency Paid Sick Leave Act; and
2. Emergency Family and Medical Leave Expansion Act.
Effective Date: The law will go into effect April 1, 2020 and expire on December 31, 2020.
Text: The text of the law is available at the following link:
Published Guidance: Guidance from the U.S. Department of Labor, Wage and Hour Division, can be found at the following links:
- https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
- https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
EMERGENCY PAID SICK LEAVE ACT
Requirements: The new law requires covered employers to provide each employee with paid sick leave to the extent the employee cannot work (or telework) because:
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
(6) 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.
Covered Employer: The new law applies to employers with fewer than 500 employees.
Eligible Employee: All employees, regardless of length of employment, are eligible.
Amount of Leave: Employers are required to provide two weeks (up to 80 hours) of paid leave for full-time employees. Part-time employees are entitled to the number of hours each employee would have worked during a two-week period.
Calculation of Leave: Leave under sections (1) through (3) above shall be calculated at the employee’s regular rate of pay, not to exceed $511 per day and $5,110 in the aggregate. Leave under sections (4) through (6) above shall be calculated based on 2/3 of the employee’s regular rate of pay, not to exceed $200 per day and $2,000 in the aggregate.
Tax Credits: Employers are allowed a credit in an amount equal to 100 percent of the qualified leave taken, subject to limits (i.e., the allowed maximum daily and aggregate amounts of leave available to each eligible employee).
Additional Points to Note:
- Sick time cannot be carried over from 1 year to the next.
- Employer cannot require employee to find a replacement employee to cover the hours missed.
- Employer cannot require employee to use other sick leave before taking sick leave under the new act.
- A notice must be posted by the employer. The notice is available at the following link:
- Employer cannot take an adverse employment action against employee exercising rights under the new act.
- Failure to provide leave will constitute a violation of the act and the FLSA for failure to pay minimum wages.
- After the first workday or portion thereof that an employee takes leave, the employer may require the employee to follow reasonable notice procedures in order to continue to receive leave.
EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT
Requirements: The new law modifies the current Family and Medical Leave Act to now apply to an employee who is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency (i.e. Covid-19).
Covered Employer: The new law applies to employers with fewer than 500 employees. The Secretary of Labor may exempt small businesses with fewer than 50 employees from the requirements of the law if the requirements would “jeopardize the viability of the business as a going concern.” However, at present there is no guidance as to what may qualify under this exception.
Eligible Employee: Employees who have been employed for 30 or more calendar days are eligible.
Amount of Leave: 12 weeks of job protected leave under the FMLA.
Calculation of Leave: The first 10 days of leave are unpaid. After the first 10 days, an employee is entitled to 2/3 of the employee’s regular rate of pay, not to exceed $200 per day and $10,000 in the aggregate.
Tax Credits: Employers are allowed a credit in an amount equal to 100 percent of the qualified leave taken, subject to limits (i.e., the allowed maximum daily and aggregate amounts of leave available to each eligible employee).
Restoration to Employment Following Leave: The normal provision of the FMLA apply to restoration of employment, with the following exceptions for leave taken under the new act for employers with fewer than 25 employees:
- The position no longer exists due to economic conditions or other changes in operating conditions of the employer that affect the employment and are caused by the public health emergency during the period of leave. Provided, the employer:
(1) makes reasonable efforts to restore the employee to an equivalent position; and
(2) if those reasonable efforts fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available within the 1-year period beginning on the earlier of:
(a) the date on which the qualifying need related to the public health emergency concludes; or
(b) the date that is 12 weeks after the date on which the employee’s leave commenced.
Additional Points to Note:
- An employee can use other paid leave available to the employee in lieu of unpaid leave during the first 10 days.
- An employee has to provide the employer “with such notice of leave that is practical.”
-Steven M. Cerny, Esq., Santi Cerny, PLLC