On Wednesday night, President Trump signed into law the Families First Coronavirus Response Act, H.R. 6201, which provides for expanded FMLA benefits and paid sick leave for many employees affected by the coronavirus, in addition to other emergency measures to respond to the pandemic.
Note that there have been changes made to H.R. 6201 since we previously reported on this legislation.
The Act will require many employers to provide expanded FMLA benefits and paid sick leave to employees who are unable to work for reasons related to the coronavirus pandemic.
The Act provides for refundable payroll tax credits, up to certain limits, to cover the sick leave or FMLA benefits paid to employees pursuant to the Act.
The FMLA and sick leave requirements do not apply to all employers. First, the provisions apply only to employers with 500 or fewer employees. Second, employers of health care providers or emergency responders may elect to exclude their employees from the FMLA and/or sick leave benefits. Finally, following passage of the Act, the Secretary of Labor will have the authority to issue regulations, including regulations that exempt small business with fewer than 50 employees from certain FMLA and sick leave requirements.
The details of these provisions are below.
Public Health Emergency FMLA Benefits
The Act will expand benefits under the Family and Medical Leave Act (FMLA) to include 12 weeks of paid job-protected leave for needs related to a public health emergency. Employees who have been working for at least 30 calendar days will be eligible.
Eligible employees can use expanded FMLA leave if they are unable to work (or telework) due to a need for leave to care for a son or daughter under 18 years of age because a school or place of care has been closed or a child care provider is unavailable due to a public health emergency.
The first 10 days of the leave may be unpaid. Employees may use accrued personal or sick leave during the first 10 days. After the first 10 days, employers must pay the employees at least two-thirds of their regular rate of pay for the number of hours the employee would normally be scheduled to work. However, compensation is capped at $200 per day and $10,000 in the aggregate.
The FMLA leave is be job protected, except that employers with less than 25 employees need not restore the employee to their position if the position no longer exists due to economic conditions caused by the public health emergency and the employer has made reasonable efforts to restore the employee to an equivalent position.
The other requirements for FMLA leave appear not to be applicable to leave for this new purpose. In other words, employees do not need to be at a worksite with 50 or more employees within a 75 mile radius, nor do they need to have worked for 12 months and at least 1250 hours.
Paid Sick Leave
The Act also will require employers to provide 80 hours of paid sick leave to full-time employees (or the number of hours the employee typically works over a two-week period for part-time workers) to be used for the following coronavirus-related reasons:
- 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 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.
- 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.
Paid sick leave is calculated based on the number of hours an employee would normally be scheduled to work. Sick leave is paid at the employee’s regular rate of pay (or two-thirds of the employee’s regular rate of pay for uses (4), (5), or (6)), except that compensation is capped at:
- $511 per day and $5,110 in the aggregate for uses (1), (2), or (3); and
- $200 per day and $2,000 in the aggregate for uses (4), (5), or (6).
Sick leave will be available to employees immediately, regardless of how long they have been employed with the employer. Employers may not require an employee to use other paid leave first before using this paid sick leave and may not require employees to find a replacement employee to cover their hours. Unused sick leave does not carry over to the next year, and an employee’s entitlement to this sick leave ends on the next scheduled work shift immediately following the termination of the need for leave.
Employers will also be required to post a notice informing employees of their rights to leave. The Secretary of Labor will provide a model notice. Employees will be protected from retaliation for use of these paid sick leave benefits.
Levenfeld Pearlstein continues to monitor developments regarding COVID-19 and is available to provide advice and guidance—remotely—to employers with questions about managing their workforce during the pandemic.