Updated March 26, 2020 to reflect new guidance from the U.S. Department of Labor
On the evening of March 18, 2020, following a 363-40 vote in the House and a 90-8 vote in the Senate, President Trump signed a multi-billion dollar emergency economic relief bill – H.R. 6201, the Families First Coronavirus Response Act (the “Act”) – into law to help combat the COVID-19 pandemic which ensures free testing, provides paid sick leave, enhances unemployment insurance, increases spending on health insurance for the poor and adds over $1 billion in food aid.
Paid Sick Leave
Most significantly for employers, the Act provides for paid sick days as well as up to three (3) months of paid emergency leave throughout the course of the COVID-19 crisis. While the Act only applies to businesses with less than 500 employees, Congress indicated it is working on another relief package and expect to have an additional relief bill on the President’s desk in the short term.
Employers subject to the Act are now required to provide full-time employees with two (2) weeks (80 hours) of paid sick leave: (1) if the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19; (2) if the employee has been advised by a health care provider to self quarantine due to concerns related to COVID-19; (3) if the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) if the employee is caring for an individual who is subject to an order as described in subparagraph (1) or an individual who has been advised as described in subparagraph (2); (5) if the employee is caring for a son or daughter of such employee because the school or place of care of the son or daughter has closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or (6) if the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.
Paid sick leave must be compensated at the employee’s regular rate of pay, unless the leave is being used to care for a family member or child, in which case the employee is entitled to only two-thirds of their regular rate of pay (see reasons 2 to 5 above). Additionally, paid sick leave, unlike emergency medical leave as discussed below, is available for immediate use by employees, regardless of the length of employment.
Part-time employees, in contrast to full-time employees, are entitled to the same protections outlined above, but the paid sick time is limited to the number hours that they work, on average, over a two-week period.
Most importantly, employers cannot require employees to utilize other paid leave before providing the paid leave under the Act, and the Act does not provide for a “credit” for any paid leave that has been provided before the enactment (April 1, 2020) – stated differently, employers must provide paid sick leave under the Act in addition to any paid leave already provided. Employers are also required to post a notice informing employees of their rights to paid sick leave under the Act, which can be done by posting the notice in a conspicuous place on its premises, emailing or direct mailing the notice to employees, or posting the notice on an employee information internal or external website.
FMLA Implications
Further, employees are now entitled to take up to twelve (12) weeks of leave under the Emergency Family and Medical Leave Act (“EFMLE”). The first ten (10) days may be unpaid, however the employee may use the federal paid sick leave as discussed above, or can substitute accrued paid time off (“PTO”) or other medical or sick leave during the two week unpaid period. An employer cannot require the employee to use any accrued PTO or other medical or sick leave during the paid period. After the initial 10 day period, the employer must continue paid FMLA leave at a rate of no less than two-thirds of the employee’s usual rate of pay. Payments under the FMLA provisions of the Act are capped at $200 per day and $10,000 in the aggregate.
To be eligible, the employee must have been on the employer’s payroll for thirty (30) days. An employee can use this new emergency FMLA leave only if the employee is unable to work (or telework) due to a need for leave to care for a child of the employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to the COVID-19 outbreak.
As with all other leave under the FMLA, the emergency leave is job-protected and an employer must return the employee to the same or equivalent position upon their return to work. As is noted above, EFMLE protection does not apply to businesses with more than 500 employees, it also does not apply to employers with less than 25 employees if the employee’s job no longer exists due to the COVID-19 outbreak. If this exception applies, employers are required to make reasonable efforts to restore the employee to an equivalent position over a one-year period.
The Secretary of Labor also has the discretion to exempt employers with fewer than fifty (50) employees from compliance with the Act upon a showing that compliance would jeopardize the viability of the business as a going concern. Although the DOL is currently not accepting submissions to determine whether an employer falls within this exemption, employers are required to document why their business meets this criteria. The DOL has indicated that regulations addressing this exemption are forthcoming. Lastly, employers of an employee who is a health care provider or emergency responder may elect to exclude such employee from the FMLA emergency leave requirements of the Act.
To help offset the costs for employers, employers may be reimbursed for some of the costs through tax credit equivalents of up to one hundred percent of the qualified paid sick leave or emergency leave wages paid under this Act. While the emergency FMLA portions of the Act do not require an express notice provision, the existing notice provisions of the FMLA require employers to provide notice of emergency FMLA rights under the Act. The Act will go into effect on April 1, 2020, and the paid sick leave and emergency leave provisions of the Act are set to expire on December 31, 2020.
Employers should expect additional relief measures to be enacted within the coming days as the country continues to navigate through the COVID-19 crisis. Our COVID-19 Task Force is available to assist you with any questions you may have as you navigate through our new and existing employment laws.
Visit our COVID-19 Hub for ongoing updates.