Families First Coronavirus Response Act Requires Employers to Provide Expanded Paid Leave
A new law requires certain employers to provide paid leave to workers in response to the COVID-19 pandemic.
The Families First Coronavirus Response Act amends the Family Medical Leave Act (FMLA). The Act takes effect on April 1, 2020 and sunsets on December 31, 2020. To help pay for the leave, the Act provides a tax credit to employers to cover the costs.
The law states that employers with 500 or fewer employees must provide employees with the benefits. There are two components to the law: "paid sick leave" and "expanded family medical leave."
Paid Sick Leave
Employees are entitled to two weeks (or 80 hours) of paid sick leave if they are:
- Showing symptoms of the coronavirus and trying to seeking a medical diagnosis,
- Told to quarantine by a healthcare provider,
- Subject to a Federal, State, or local quarantine,
- Caring for an individual who is told to quarantine by a healthcare provider or subject to a Federal, State, or local quarantine [Note: unlike the definition of family member in the FMLA, “individual” is not limited to family so it could be a neighbor or friend],
- Caring for their child if the school or place of care for their child has been closed due to COVID-19 precautions, or
- 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.
Employees are entitled to leave at 100% of the employee’s normal salary, up to $511 per day, and $5,110 total per employee, for purposes 1-3 above.
For purposes 4-6, the employer may pay at 2/3 of the employee’s normal pay, up to $200 per day, or up to $2,000 total per employee.
Expanded Family and Medical Leave
The law also provides paid expanded family and medical leave for employees who have worked with the employer for at least 30 calendar days. It is important to note that the paid sick leave provision has no such minimum in place.
Expanded family and medical leave applies to employees who are unable to work or telework because they have to care for their child because the school or place of care for their child has been closed due to the public health emergency.
For the expanded family and medical leave, the employer must provide 12 weeks of leave. Also:
- The first 10 days of leave are unpaid (unless the employee qualifies for paid sick time through the new law or the employee is using accrued time off provided through the employer’s paid time off policies).
- After the initial 10 days, the employer is required to provide expanded family and medical leave at not less than 2/3 of an employee’s regular rate of pay. The Act limits this pay entitlement to $200 per day and $10,000 in the aggregate per employee.
Other Key Aspects of Paid Leave under the Act
- As evident from the enumerated purposes, the Act does not rely on “serious health condition” as defined under the FMLA but instead the purposes for leave are tied to various COVID-19 related absences.
- Part-time employees are entitled to paid sick time equivalent to the number of hours they work on average in a two-week period.
- The Labor Secretary can exempt businesses with fewer than 50 employees from having to pay these benefits if it “would jeopardize the viability of the business.” However, it is currently unclear how lenient the Trump administration will be in interpreting this exemption.
- The law also excludes employees who are healthcare providers or emergency responders.
- An employee may first use paid leave under this law for covered reasons before using employer-provided paid leave, and an employer may not require an employee to use other paid leave provided by the employer before the employee uses paid leave under the Act.
- There is a notice requirement under the law and the Department of Labor (DOL) has issued a model poster that can be accessed here. The notice must be posted in a conspicuous place on the employer’s premises. Interestingly, due to many employees teleworking the DOL’s guidance provides that the employer may satisfy this requirement by emailing or mailing the notice, or by posting the notice on an employee information internal or external website.
For more information, contact one of our employment attorneys.