This is an emerging story. Before implementing any policies described, be sure to check on the status of enacted legislation. For information about the original Families First Bill, please see my March 16, 2020 article.
On March 18, 2020, the Senate passed, and the President promptly signed into law, the House’s most recently amended Families First Coronavirus Response Act that I wrote about extensively yesterday. Below is a summary of the newly enacted legislation:
The Emergency Family and Medical Leave Expansion Act
The Emergency Family and Medical Leave Expansion Act amends the Family and Medical Leave Act (FMLA) on a temporary basis (through December 31, 2020) and provides certain employees with up to 12 weeks of FMLA-protected leave for reasons related to COVID-19.
New FMLA-Qualifying Reason for COVID-19-Related Leave: In addition to existing FMLA qualifying events, the new Act provides one new qualifying FMLA event – when an employee is unable to work (or telework) due to a need for leave to care for a child under 18 if the child’s school or place of care has been closed, or a child care provider is unavailable, due to a public health emergency. (Note: the “child care provider” must be someone who is normally paid for providing such care, not simply a family member who normally provides care free of charge.)
Paid Leave Requirement:
- First 10 Days: Under the new Expansion Act, the first 10 days of COVID-19-related FMLA leave are unpaid. Employees may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.
- After the Initial 10 Days: After 10 days of unpaid leave, covered employers must provide paid COVID-19-related FMLA leave through the remainder of the total available 12-weeks of leave (basically another 10 weeks) at no less than two-thirds the employee’s regular rate of pay for the number of hours the employee would have been normally scheduled. This paid leave is capped at $200 per day and $10,000 in the aggregate.
No Liability for Small Employers: The Expansion Act states that employers who traditionally did not have to comply with the FMLA (i.e., those with fewer than 50 employees in a 75-mile radius) are not subject to civil FMLA damages for violating the proposed COVID-19-related FMLA leave.
The Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave portion of the new law requires employers with fewer than 500 employees to provide employees with two weeks of paid sick leave, though the amount of pay will differ depending on the reason the leave is taken.
Reasons for Sick Leave: The Act provides 6 reasons for which an employee may take paid sick time:
- The employee is subject to a 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 (a) is subject to a Federal, State, or local quarantine or isolation order or (b) has been advised by a health care provider to self-quarantine.
- The employee is caring for their own child if the school or place of care for that child has been closed, or the child care provider is unavailable, due to COVID-19 precautions.
- 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.
How Paid Sick Leave Is Paid: Employees using paid sick time will receive varying pay based on the reason for the leave. And like The Emergency Family and Medical Leave Expansion Act, the new law places caps on the maximum paid sick time to which employees are entitled:
Emergency sick time pay relating to an employee’s own condition (see 1-3 above) is calculated based on the employee’s regular rate or applicable minimum wage, whichever is greater, but is limited to $511 per day and $5,110 total.
Emergency sick time pay relating to situations where the employee is acting as a caregiver (see 4-6 above) is calculated based on two-thirds of the employee’s regular rate or applicable minimum wage, whichever is greater, but is limited to $200 per day and $2,000 total.
In addition to other leave?: Employers are prohibited from requiring employees to use other paid leave provided by the employer before using the new paid sick time, but there is no prohibition against employers changing their existing paid leave policies on or after the date of enactment.
- Under these Paid Sick Leave regulations, employers may elect to exclude health care providers and emergency responders from these paid sick leave requirements.
- An employer is not required to provide paid leave to an employee who is subject to reduced hours or layoff because the employer’s business has been impacted by COVID-19.
- The Department of Labor is explicitly authorized to issue regulations which, among other things, exempt businesses with fewer than 50 employees if providing emergency paid sick time would jeopardize the viability of the business.
- Employers receive tax credits for 100 percent of what they pay out to employees, within the above-noted limits.
In addition to the FMLA and Paid Sick Leave regulations, the new Act also includes:
- Bolstered unemployment insurance
- Free testing for the coronavirus for those who need it
- A boost to food assistance (SNAP) and federal funding for Medicaid
This new legislation is scheduled to take effect on April 2, 2020, 15 days from the President’s signing the bill into law. In the interim, the various agencies that will administer different portions of the new law will be quickly promulgating applicable administrative regulations and issuing guidance.
Another significant spending bill is already in the works in the Senate and is aimed at saving foundering industries hit hardest by COVID-19.The Chapman Firm is staying on top of these legislative changes and will continue posting guidance for employers.
For questions about preparing your workplace for implementation of these new rules, contact The Chapman Firm.