The passage of the Coronavirus relief law, known as the Families First Coronavirus Response Act, becomes effective April 2, 2020, and terminates on December 31, 2020.
Here are the key points:
Emergency Family & Medical Leave Expansion Act
The Act expands the Family Medical Leave Act of 1993 (“FMLA”) by including the Emergency Family & Medical Leave Expansion Act. This provision amends Title I of the FMLA on a temporary basis by requiring private employers with fewer than 500 employees (instead of employers with 50 or more employees) to provide up to 12 weeks of job-protected public health emergency leave, ten weeks of which must be paid leave, to their employees through December 31, 2020. The number of employees who will qualify for such leave is expanded as the Act reduces the amount of time the employee must be employed with the employer prior to becoming eligible for leave. Any employee employed for 30 or more days is eligible for such paid job-protected leave if they have a qualifying need related to a public health emergency. As written, the only “qualifying need” is if the employee is unable to work (or telework) because he or she is caring for their minor child if the child’s school is closed or the child’s regular childcare provider is unavailable due to the public health emergency.
The first ten days of leave can be unpaid, but an employee can opt to substitute accrued vacation, personal or sick leave during this time, but the employer cannot require the employee to do so. Thereafter, the employer must provide paid leave. Paid leave for full-time employees is calculated using no less than 2/3 of the employee’s regular rate of pay (capped at $200 per day and for a total of $10,000). Part-time employees are also eligible for paid leave, based on the average number of hours worked during the previous six months before taking leave.
The Act permits the Secretary of Labor to provide exemptions to businesses with fewer than 50 employees if providing paid family leave would jeopardize the viability of the business as a going concern. The Act generally requires employers to reinstate employees in the same job or an equivalent position when they return to work, but there is an exception for employers with fewer than 25 employees if the position no longer exists due to economic conditions or operational changes that are made because of the public health emergency.
Emergency Paid Sick Leave Act
The Families First Coronavirus Response Act also adds provisions for paid sick leave (the Emergency Paid Sick Leave Act). For private employers with fewer than 500 employees and public employers of any size, the new law provides that employers must provide up to 80 hours of paid sick leave benefits if an employee:
- Has been ordered by a federal, state, or local government to quarantine or isolate because of COVID-19;
- Has been advised by a health care provider to self-quarantine because of COVID-19;
- Has symptoms of COVID-19 and is seeking a medical diagnosis;
- Is caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to quarantine or self-isolate; or
- Is caring for the employee’s son or daughter because the child’s school is closed and/or their regular caregiver is unavailable.
All full-time employees (regardless of the length of employment) are entitled to 80 hours of paid sick time. Part-time employees are entitled to paid sick leave in a number of hours equal to the number of hours that such part-time employee works on average every two weeks. Paid sick leave wages are capped at $511.00 per day up to a total of $5,110.00 per employee for their own use. If the employee’s absence is necessitated by caring for others, the cap is $200.00 per day, and a total of $2,000.00. Such paid time off is immediately accessible, but cannot be carried over to the next calendar year.
Under the Act, an employer cannot:
- Require an employee to use other paid leave before using the paid sick time provided by the Act;
- Require an employee to find a replacement to cover his or her scheduled work hours;
- Retaliate against any employee who takes leave in accordance with the Act; and
- Retaliate against an employee who files a complaint or participates in a proceeding related to the Act – including a proceeding that seeks to enforce the Act.
It should be noted that the employer of an employee who is a healthcare provider or an emergency responder may elect to exclude such employee from application of this section of the Act.
As with the FMLA expansion, the Secretary of Labor may provide exemptions to businesses with fewer than 50 employees if providing it would jeopardize the viability of the business as a going concern.
Tax Credits for Paid Sick and Paid Family and Medical Leave
To help offset the expense of these sweeping changes, the Act also expands tax credits available to employers who are required to provide Emergency Paid FMLA leave, and Emergency Paid Sick Leave under the Act. Employers who are required to provide paid leave under the Act will receive a credit against their quarterly payroll taxes, in an amount equal to 100% of the paid FMLA leave and paid sick leave wages paid by the employer.
Emergency Unemployment Insurance Stabilization and Access Act of 2020
The Emergency Unemployment Insurance Stabilization and Access Act of 2020 makes changes to the unemployment benefit process to benefit employees. The Act provides emergency funding to states for increasing access to unemployment benefits, including the following changes:
- Individuals may apply for unemployment benefits online or via telephone;
- There is no longer a one-week waiting period;
- Employees do not have to be actively searching for other employment to receive unemployment benefits;
- Employers impacted by COVID-19 will not be responsible for benefits paid resulting from these changes.
This Act is complex and was put together very quickly. There is currently no guidance from the Department of Labor, but guidance is expected within the next few weeks. If you have questions or concerns about this legislation and its impact, please contact us. Our attorneys have extensive experience with employment law and we are happy to work with you over the phone or via virtual meeting so that you can ensure your business is in compliance.