The Families First Coronavirus Response Act was enacted on March 18, 2020. The new law takes effect on April 2, 2020 and will remain in effect until the end of the calendar year. The law contains broad provisions responding to the COVID-19 pandemic. This article addresses only those provisions related specifically to employment.
Emergency Family and Medical Leave Expansion Act
The new law contains the Emergency Family and Medical Leave Expansion Act, which provides that employers with fewer than 500 employees and covered public-sector employers must provide up to 12 weeks of job-protected FMLA leave to employees who have been employed for at least 30 calendar days if the employee has a qualifying need related to a public health emergency. A “qualifying need” means that the employee is unable to work (or telework) due to a need for leave to care for the employee’s son or daughter (under 18 years of age) if the child’s school or place of care has been closed or is unavailable due to a public health emergency.
Paid FMLA Leave for Qualifying Reasons
If an employee takes leave due to a qualifying need related to a public health emergency, the employee must be allowed to use any accrued paid time off for the first 10 days, including vacation, personal, medical or sick leave (including Emergency Paid Sick Leave, if applicable – see below). If the employee needs more than 10 days off for a qualifying need, the employer must pay the employee two thirds of his or her regular rate of pay (as defined by the FLSA) for the number of hours the employee would otherwise have been scheduled to work. If the employee’s workweek is so variable that the number of hours cannot reasonably be determined, the employer must use the average number of hours worked per week over the previous six months. The amount of pay is limited, however, to $200 per day and $10,000 in the aggregate per employee.
The law includes an exception to the requirement of job restoration after the conclusion of the leave for employers with fewer than 25 employees if the position no longer exists. This limitation is similar to existing FMLA regulations regarding job eliminations during FMLA, but is subject to certain additional conditions including the obligation to contact the employee if an equivalent position becomes available over the next 12 months.
Limitations on Civil Lawsuits by Employees
The law prohibits civil lawsuits by employees against employers with fewer than 50 employees, but leaves open the possibility of an action by the Secretary of Labor for violations.
Coordination with Existing FMLA policy
This new law is an expansion of the FMLA and was inserted into the existing FMLA law. Because of that, other provisions of the employer’s FMLA policy will continue to apply to leave taken for qualifying reasons under this new law. For example, the employee’s entitlement for up to 12 weeks of leave would be reduced by FMLA time taken for other reasons. Thus, an employee who has previously used eight weeks of FMLA, would only have four weeks available for use. Also, if an employer’s FMLA policy requires taking other paid time off (vacation, personal time, PTO, etc.) in conjunction with FMLA, then the employer could require substitution of paid time during the otherwise unpaid first 10 days. Caveat: The employer’s substitution rule may require modification if the employee’s leave qualifies for the Emergency Paid Sick time (see below).
Emergency Paid Sick Leave Act
The same employers covered by the expanded FMLA provisions are also required to provide paid sick time to any employee who is unable to work (or telework) because:
(1) the employee is subject to a federal, state, or local quarantine order related to COVID-19;
(2) the employee has been advised by a health care provider to self-quarantine because of COVID-19;
(3) the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
(4) the employee is caring for an individual ordered to quarantine, or advised by a health care provider to quarantine;
(5) the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
(6) the employee is experiencing any other substantially similar conditions as specified by the Secretary of Health and Human Services.
Calculation of Paid Time
In general, full time employees are entitled to 80 hours of paid sick time. Part time employees are entitled to pay equal to the typical number of hours they are scheduled to work in a two-week period. If the employee’s workweek is so variable that the number of hours cannot reasonably be determined, the employer must use the average number of hours worked per week over the previous 6 months.
The rate of pay depends upon the reason for absence. If an employee takes time off under reasons (1), (2), or (3) above, the rate is the employee’s regular rate of pay, subject to a cap of $511 per day and $5,110 in the aggregate. If the employee takes time off under reasons (4), (5), or (6) above, the rate is two thirds of the employee’s regular rate of pay, subject to a cap of $200 per day and $2,000 in the aggregate.
Employees taking paid sick time under this law cannot be required to find a replacement to cover his or her hours. Also, employers cannot force an eligible employee to use other paid time off prior to using this benefit. The employer may require the employer to follow reasonable notice procedures to receive this benefit. Paid sick time provided under this law does not carry over from one year to the next.
Coordination with FMLA
If an employee takes FMLA to take care for a son or daughter whose school or day care is closed due to COVID-19 (see above), the employee may choose to use Emergency Paid Sick time during the first 10 otherwise unpaid days of FMLA. The law also seems to allow the employer to require the employee to use the Emergency Paid Sick time during the unpaid portion of the leave if the employer’s usual policy requires the use of paid time during FMLA. However, if an employer requires substitution, and the employee has both Emergency Paid Sick time and other paid time available, the employer cannot force the use of other paid time prior to the use of Emergency Paid Sick time when the reason for leave qualifies for the use of Emergency Paid Sick time.
Importantly, the new law gives employers a payroll tax credit equal to 100% of the wages paid under these new requirements, so long as the wage payments do not exceed the caps outlined above.
Expect further clarification from the Department of Labor
The law authorizes the Department of Labor to issue regulations implementing these provisions, including exemptions for businesses with fewer than 50 employees under certain circumstances, and to exclude certain health care providers and emergency responders. The law also directs the Department of Labor to issue guidelines regarding the calculation and use of paid sick time. Those regulations and guidelines do not yet exist but are expected within 15 days.
If you have questions regarding the Families First Coronavirus Response Act, or other employment law questions related to COVID-19, please contact Gary Johnson at email@example.com, or any member of Beckman Lawson’s Labor and Employment Group.
Gary D. Johnson
Beckman Lawson, LLP
201 West Wayne Street
Fort Wayne, IN 46802