COHEN NORRIS UPDATE COVID-19
Families First Coronavirus Response Act Mandates Emergency FMLA Expansion and Paid Sick Leave Benefits
Congress has just passed, and the President has signed a new law, the Families First Coronavirus Response Act which will provide paid leave to employees forced to miss work because of the COVID-19 outbreak.
If you are an employer with fewer than 500 employees, you are likely going to be required to provide paid leave to employees who are unable to work because of certain circumstances relating to the Coronavirus pandemic. Employers should be prepared to implement these requirements in short order.
The act contains two separate provisions:
- An emergency expansion of the Family Medical Leave Act (FMLA); and
- A new federal paid sick leave law. This Act will apply to most employers, including small businesses with fewer than 50 employees. However, the Department of Labor has the authority to provide relief for small employers.
Tax Credit. Employers will receive a full payroll tax credit for emergency sick and FMLA wages paid.
Emergency Sick Leave
Applicable to entities employing fewer than 500 employees.
- Employers must provide full-time employees with 80 hours of emergency paid sick leave and part-time employees with the average number of hours they work over a 2-week period of emergency paid sick leave if the employee is unable to work or telework for any of the following reasons:
(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 a Federal, State, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
(5) The employee is caring for his/her child if the child’s school or place of care has been closed, or the child’s childcare provider is unavailable, due to COVID-19 precautions; and
(6) The employee is experiencing any other condition that is substantially similar to COVID-19 as specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Amount to be paid.
- If leave is taken pursuant to (1), (2), or (3) above, then Employers are required to pay employees, an amount that is the greater of: (i) their regular pay; (ii) the state minimum wage where they are employed; (iii) the local minimum wage where they are employed; or (iv) the federal minimum wage. This payment is capped at $511 per day or $5,110 in total.
- If leave is taken pursuant to (4), (5) or (6) above, then Employers are required to pay employees 2/3’s of the applicable wage amount. This payment is capped at $200 per day or $2,000 in total.
May be Used Before Other Paid Leave
- Employers may not require an employee to use other paid leave provided by the employer to the employee before the employee uses paid sick time provided for by the Act
Emergency Family & Medical Leave Expansion Act
Applicable to entities employing fewer than 500 employees.
- Employers must provide emergency leave to an employee who has been employed for at least 30 days and who meets the following requirement.
- The employee is unable to work (or telework) due to a need for leave to care for his/her child under 18 years of age if the school or place of care has been closed, or the child care provider of the employee’s child is unavailable, due to an emergency with respect to COVID-19 declared by a Federal, State, or local authority.
- During the first 10 days of leave, employers are not required to provide paid leave. During this time, employees are permitted to substitute vacation, personal, medical, or sick leave in place of the emergency leave.
- If leave is required beyond 10 days, then employers must provide paid leave for each additional day of leave. Employers must pay an amount of at least 2/3 of the employee’s regular rate of pay based on the number of hours the employee would normally be scheduled for work. This payment is capped at $200 per day or $10,000 in total.
- Calculating Pay for Non-Full Time Employees – 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. 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.
- Possible Exemption: Employers with fewer than 50 employees who are not otherwise covered by the FMLA. Employers with fewer than 50 workers may apply for an exemption from providing paid family and medical leave and paid sick leave if it would jeopardize the viability of the business.
- Job Restoration: Employers are required to restore the jobs of those employees who take the emergency leave. However, employers employing fewer than 25 employees are not required to restore a position that is eliminated due to economic conditions caused by the coronavirus emergency so long as the employer has made reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced.
- This bill will take effect April 2, 2020 and will stay in effect until December 31, 2020. Employers should make sure that they are prepared to communicate these temporary forms of leave to their employees to ease any concerns that some may have as the number of COVID-19 cases grows.
If you would like additional information or a consultation concerning employer\employee issues, please call or email our Employment Law Section Chair Gary A. Isaacs, Esquire at (561) 844-3600 or firstname.lastname@example.org.