On April 2, 2020 the Families First Coronavirus Response Act (H.R. 6210) takes effect and will remain in place until December 31, 2020.
The two major provisions of the Act are the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. Both provide paid leave for employees absent from work for reasons related to COVID-19. Benefits will differ for full-time versus part-time employees who are defined as follows: full-time employees are individuals who work for their employer for 40 hours or more per week and part-time employees are individuals who work for their employer for less than 40 hours per week.
Emergency Paid Sick Leave Act
The Emergency Paid Leave Act applies to all “covered employers” which includes private sector employers with fewer than 500 employees, and public sector employers with 1 or more employees. Note, there is a possibility that certain health care providers, emergency responders and small businesses with fewer than 50 employees may be exempt from the bill’s paid leave requirements if they can show that compliance with the requirements of the Act would jeopardize the viability of the business as a going concern. Guidance on this exclusion process is expected to be issued on March 25, 2020.
This Act states that an employer shall provide to each employee paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:
- The employee is subject to Federal, State, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis;
- 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);
- 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 childcare provider of such son or daughter is unavailable, due to COVID–19 precautions; or
- 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.
Full-time employees are entitled to 80 hours of paid sick time and part-time employees are entitled to paid sick time for the number of hours equal to the number of hours the employee works, on average, over a 2-week period.
If the employee is entitled to paid sick leave for a reason described in 1, 2, or 3 (listed above), the employee’s required compensation shall not be less than the greater of the employee’s regular rate of pay, or the minimum wage rate in effect for such employee in the applicable State or locality, whichever is greater. However, the employee’s required compensation may not exceed $511 per day and $5,110 in the aggregate over the two-week period.
If the employee is entitled to paid sick leave for a reason described in 4, 5, or 6 (listed above), the employee’s required compensation is two-thirds of the employee’s regular rate of pay and may not exceed $200 per day and $2,000 in the aggregate over the two-week period.
Paid sick time does not carry over from one year to the next, and the employee is entitled to paid sick leave regardless of the duration of their employment. Additionally, the employee may use paid sick time before using other paid leave, but the employer cannot require the employee to use paid leave before using paid sick time.
After the first workday (or portion thereof) that an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time. Employers are required to post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, to be prepared or approved by the Secretary of Labor, of the requirements described in this Act.
Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Act amends the Family and Medical Leave Act of 1993 (FMLA) and applies to all employers with fewer than 500 employees (subject to the same possible exemptions for health care providers, emergency responders and small businesses with fewer than 50 employees).
To be an “eligible employee” under this Act, the employee requesting leave from work must have worked for the employer for at least 30 days prior to requesting the leave, and the leave must be requested because the employee 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 related to COVID-19 declared by a Federal, State or local authority.
This act allows for an employee to take up to 12 weeks of job-protected leave, of which the first 10 days are unpaid – however, the employee may use paid time off (PTO) that he or she has accrued to cover these 10 unpaid days.
After these initial 10 days of unpaid leave, the employee’s paid leave is calculated based on an amount that is not less than two-thirds of an employee’s regular rate of pay subject to a maximum cap of $200 per day and $10,000 in the aggregate over the 12 week period.
Note: employers with fewer than 25 employees do not have to restore the position of employees who take paid leave if the employee’s position no longer exists due to economic conditions or other changes in operating conditions of the employer caused by a public health emergency.
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