President Signs “Families First Coronavirus Response Act” Providing Sick and Family Leave for Some Employees
UPDATE: The Wage and Hour Division of the United States Department of Labor (DOL) has published a notice regarding the requirements of the Families First Coronavirus Response Act that must be posted in a conspicuous place in the workplace where notices to employees are customarily posted. The notice is available here. The DOL has also published a “Frequently Asked Questions” (“FAQ”) guide, available here. According to the FAQ’s, an employer may satisfy the notice requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. Employers are not required to post the notice in languages other than English, but the DOL is working on translating it to other languages.
March 23, 2020
UPDATE: The Wage and Hour Division of the United States Department of Labor has published several fact sheets providing guidance on the sick and family leave available under the Families First Coronavirus Response Act, available here.
March 19, 2020
Yesterday, March 18, 2020, President Trump signed into law the “Families First Coronavirus Response Act,” which, among other relief measures, provides up to two weeks (80 hours) of partially paid sick leave, as well as up to 10 days of unpaid family leave and up to 10 weeks of partially paid family leave, for certain workers affected by COVID-19. The law goes into effect in 15 days, on April 2, 2020, and the leaves provided under the law are currently only available until December 31, 2020. There is no provision in the law for retroactive application for employees who were unable to work for the covered reasons prior to April 2, 2020.
Significantly, the law does not apply to employers with more than 500 employees. In addition, the Department of Labor is authorized to issue regulations which would exempt employers with fewer than 50 employees if providing emergency paid leave would jeopardize the viability of the business.
The law also does not require an employer to provide leave for employees who are unable to work solely due to business determinations or closures, as the leave is limited to specific reasons related to COVID-19, described below.
Paid Sick Leave
Covered employers (those with fewer than 500 employees) must provide employees with partially paid sick leave for certain reasons specified under the Emergency Paid Sick Leave Act (“EPSLA”). Full time employees will eligible for up to 2 weeks (80 hours) of partially paid sick leave. Part-time employees will be eligible for partially paid sick leave for up to the typical number of hours that they work in a typical two-week period.
Employees will be eligible for leave under this law where the employee is unable to work (including remote work) because the employee:
- is subject to a federal, state or local quarantine or isolation order related to COVID-19;
- has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- is caring for an individual who is subject to a federal, state or local quarantine order, or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- is caring for the employee’s son or daughter (under the age of 18), if the child’s school or childcare facility has been closed or the child’s care provider is unavailable due to COVID-19 precautions; or
- 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.
Employees taking leave for reasons 1-3 must be paid the employee’s regular rate of pay, up to a maximum of $511 per day and $5,110, in total. Employees taking leave for reasons 4-6 must be paid two-thirds of the employee’s regular rate, up to a maximum of $200 per day and $2,000 in total.
After the first sick day, an employer may require the employee to follow reasonable notice procedures in order to continue receiving paid sick time. The paid sick leave provided under this law cannot be carried over from one year to the next and unused leave is not payable upon termination of employment.
Paid Family Leave
The Emergency Family Medical Leave Expansion Act (“EFMLEA”) temporarily amends the Family and Medical Leave Act (“FMLA”) to provide both unpaid and partially paid leave to employees employed by employers with fewer than 500 employees who have been employed for at least 30 calendar days.
The law provides up to 12 weeks of job protected leave to an employee who is unable to work (including working remotely) because the employee’s child’s school or place of care has been closed, or the child-care provider is unavailable, due to a public health emergency related to COVID-19 emergency declared by a Federal, State, or local authority.
The first 10 days of EFMLEA leave is unpaid. However, employees may use any available paid time off during that time, including paid sick leave available under the EPSLA (described above). Unlike with regular FMLA leave, an employer cannot mandate that an employee use available employer-provided paid time off if the employee elects not to do so.
After 10 days, employers must provide employees with partially paid leave for up to the remaining 10 weeks of leave, at two-thirds of the employee’s regular rate of pay times the employee’s usual schedule of weekly hours, up to a maximum of $200 per day or $10,000 total.
Where the need for such leave is foreseeable, employees must provide the employer with such notice of leave as is practicable. Just as with leave taken under the FMLA, an employer will usually be required to restore an employee who takes EFMLEA leave to the same position the employee held when the leave commenced, or to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. However, an employer who employs fewer than 25 employees will not be required to restore an employee to the same or an equivalent position if the position does not exist due to economic conditions or other changes in operating conditions caused by the COVID-19 public emergency. Such employers must make “reasonable efforts” (not defined in the law) to restore the employee to the same or an equivalent position. If the reasonable efforts fail, the employer must make efforts to contact the employee and reinstate the employee if an equivalent position becomes available within a one-year period beginning on the earlier of (a) the date on which the qualifying need for leave concludes, or (b) the date that is 12 weeks after the date the employee’s leave started.
Interaction with Other Leave Laws and Employer Provided Leave
All sick leave provided under this new federal law is in addition the rights or benefits an employee may be entitled to under (i) Federal, State, or local law (including the recently passed legislation in New York,); (ii) a collective bargaining agreement; or (c) an existing employer policy. This means that an employer cannot require an employee to use other employer-provided paid leave before using the sick leave provided under this law.
The New York law, also signed by Governor Cuomo on March 18, 2020, provides that the New York benefits, including, but not limited to, paid sick leave, paid family leave, and benefits due to disability, will not be available if the federal government provides the same benefits, except that if the provisions of the New York law would have provided more benefits than the federal law, an employee will be entitled to the difference between the benefits available under the New York law and the benefits available under any federal law. Unless further addressed by regulations or additional legislation, it appears that the New York law will, in some but not all cases, provide for more sick leave, more family leave and greater monetary benefits than the federal law, and covered New York employees will be entitled to the difference between the two.
For example, an employee who works for an employer with 11-99 employees who is subject to a federal, state or local quarantine or isolation order related to COVID-19 would receive 5 days of paid sick leave under the NY law, but would receive a total of 80 hours (10 days) under the federal law. This employee would therefore be eligible for 10 days of sick leave. If this employee’s regular compensation is more than the $511 per day provided under the federal law, the employee would be entitled to the difference between the employee’s regular pay and the $511 per day for the first 5 days covered by the NY law, and then $511 per day for the remaining 5 days under federal law.
An employee in New York City who is subject to government order of quarantined who has accrued five paid sick days under the New York City Earned Sick and Safe Time Act (“ESSTA”) would be eligible to first take sick leave under the federal law, and then take the sick days accrued under the New York City ESSTA.
Large New York employers who have more than 500 employees are exempt from the new federal law, so employees working for such employers would only be eligible for leave under the New York law.
Employers may not discharge, discipline, or otherwise discriminate against any employee who takes leave provided by either EPSLA or EFMLEA.
Notice to Be Posted
Employers will be required to post a notice regarding the requirements of the law in a conspicuous place in the workplace where notices to employees are customarily posted. The Secretary of Labor is directed to issue a model notice within seven days after the law’s enactment.
Tax Credits for Employers
To help offset the costs to employers (including certain health plan costs) for providing these leaves, businesses may take a tax credit applied to the employer portion of the Social Security payroll tax.
Employers should determine whether they have any current employees who are not working for reasons related to COVID-19 and seek legal guidance to determine whether the employees may qualify for leave(s) under the new laws. Employers should also notify managers and supervisors that employees seeking leave for reasons related to COVID-19 must be refered to the employer’s human resource professionals (or other individual designated by the employer) to determine the employee’s eligibility for leave under the new laws.
The Department of Labor is expected to issue regulations governing the new laws and the Secretary of Labor will issue a model notice to employees. We will provide further guidance on those developments here.
Please do not hesitate to contact any of our attorneys if you have any questions or would like additional information.