Federal Coronavirus Response Act creates new paid leave requirements for many employers
The Families First Coronavirus Response Act creates new paid leave provisions that went into effect April 1 and will remain in effect until December 31, 2020. These provisions apply to employers of 1-499 employees, and to both full-time and part-time employees.
Employers of health care providers (which is interpreted broadly) and emergency responders can chose to exempt those employees from these paid leave provisions. An employer of fewer than 50 employees can also choose to assert an exemption if it determines the business will be sufficiently jeopardized within the parameters set forth by the Department of Labor; however, that exemption can only apply to leave for the purpose of caring for a child due to school closure or unavailability of child care (see below).
The Department of Labor has issued regulations interpreting these laws. It has also created guidance in the form of a Fact Sheet for Employers and a Q & A page, as well as a poster that satisfies the notice requirements for most employers FAQ regarding notice requirements. It is important to review these materials carefully.
This is only a general summary. The legal and regulatory response to COVID-19 are rapidly evolving. Affected employers should stay tuned for further developments, including checking the links above, which may be updated. You can also check the Department of Labor news page. You should contact an employment law attorney for specific legal advice regarding the facts of your situation.
Emergency Family and Medical Leave Expansion Act
The Act temporarily expands the Family Medical Leave Act (FMLA) to provide for up to 12 weeks of job-protected leave for eligible employees of covered employers. The only qualifying reason for leave under the final version of the Act is for an employee who is unable to work or telework to care for their child under the age of 18 whose school or place of childcare is closed or the childcare provider is unavailable due to a public health emergency.
Even if you never had to think about FMLA before as an employer because you did not meet the ordinary threshold of 50 or more employees, smaller employers are bound by this temporary provision. This temporary FMLA provision also differs from the rest of FMLA in that the employee only needs to have worked for the employer for at least 30 days to qualify for the leave (as opposed to the ordinary 12-month and minimum hours requirement under FMLA).
Another feature that distinguishes the Act from traditional FMLA: the employer must provide paid leave, after an initial 10-day period. During the initial 10-day period of unpaid leave, an employee is permitted to use any accrued paid leave (e.g., sick or vacation leave). Also, as discussed below, an eligible employee can use the new Emergency Paid Sick Leave during the 10-day period.
After the initial 10-day period, the employer must generally pay the employee 2/3 of their regular pay, at the number of hours the employee would regularly be scheduled (capped at $200 per day, and $10,000 total). For part-time employees or those who work an irregular schedule, pay is based on the average hours worked on the six months preceding the leave, or if the employee has worked for the employer less than 6 months, the number of hours reasonably expected at hire.
The Act also includes job reinstatement rights. For employers of 25 or more employees, those are generally the same as under traditional FMLA. Employers of fewer than 25 employees are also required to reinstate employees if certain requirements are met.
Violations can result in damages for lost wages and benefits, actual damages, liquidated damages, and attorney fees and costs (although there is no private right of action against employers of fewer than 50).
Emergency Paid Sick Leave Act
The Act requires covered employers to provide paid leave to eligible employees for qualifying leave. The amount of pay depends on the reason for the leave.
The reasons for leave are:
Regarding the employee’s own condition:
Subject to quarantine per certain orders or health care advice relating to COVID-19; or
Experiencing COVID-19 symptoms and seeking diagnosis
2. Regarding other individuals:
Caring for an individual subject to quarantine per certain orders or health care advice relating to COVID-19 (the regulations indicate this must be someone the employee would reasonably be expected to care for, and provides a few examples); or
Caring for the employee’s child if the child’s school or place of childcare is closed or the childcare provider is unavailable, due to a public health emergency
3. Finally, there is a provision for the Department of Health and Human Services to identify “substantially similar” conditions that would qualify for leave.
Emergency Paid Sick Leave applies regardless of how long the employee has been employed with the employer. Full-time employees are entitled to 80 hours of paid leave for reasons falling under Item 1 above, and 2/3 of their regular rate for reasons falling under Items 2 or 3. Part-time employees or those who work irregular hours are entitled to be paid based on the average number of hours worked during the six months preceding the leave. An employee who has worked for the employer less than six months is entitled be paid based on the average number of hours worked over a two-week period. Paid sick leave is capped per employee at $511 per day and a total of $5,110 for reasons under Item 1, and $200 per day or $2,000 total for reasons under Items 2 or 3.
Also, if Emergency FMLA leave is also applicable (see above), if the employee requests, for the initial 10 days of Emergency FMLA, the employer is required to pay the employee’s entitled Emergency Paid Sick Leave. This would only apply in the case of leave to care for a child whose school has closed or childcare is unavailable.
Emergency Paid Sick Leave under the Act may be in addition to other paid leave provided by the employer, and employees must be permitted to use it before other types of leave. Employers are not permitted to change other paid leave policies for purposes of avoiding these requirements. Employees are not entitled to carry over Emergency Paid Sick Leave.
The Act prohibits discrimination or retaliation against an employee for using protected leave or attempting to assert their rights. Remedies for violations may include wages, liquidated damages, attorney fees, and costs.