Families First Coronavirus Response Act
PAID LEAVE BENEFITS UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT
In response to the devastating impact the coronavirus outbreak has had on American workers Congress has enacted the Families First Coronavirus Response Act (Act). While the Act addresses free coronavirus testing, expanded food assistance, employer tax credits and unemployment compensation benefits, the central focus of the legislation is paid leave benefits.
There are two components of the paid leave benefits in the Act.
The first component is the Emergency Family and Medical Leave Expansion Act, which provides 12 weeks of paid leave for employees who are unable to work because they need to care for children related to school or daycare closure due to a public health care emergency. This component of the Act utilizes the Federal Family and Medical Leave Act (FMLA) as the framework for this leave.
The second component of the Act is the Emergency Paid Sick Leave Act, which provides employees with 10 days (80) hours of paid sick leave when an employee cannot work due to circumstances related to the coronavirus.
The U.S. Department of Labor (DOL) is planning to issue regulations to implement both components of the Act, which will hopefully provide much more guidance on how to administer these benefits and interpret which workers should qualify for the new benefits. For example, the Act authorizes the DOL to exclude health-care providers and emergency responders, and also exempts businesses with fewer than 50 employees, if offering the leave would “jeopardize the viability of the business.” The DOL stated that it intends to issue regulations by the implementation date (April 2, 2020), but did not provide a precise deadline when the regulations would be issued.
Until those regulations are issued, the following is an analysis of the leave benefits provisions of both components of the Act as currently understood.
Emergency Family and Medical Leave Expansion Act
Employers Covered:
Employers with fewer than 500 employees.
Employees Covered:
Employees who have been working at least 30 calendar days.
Leave Provided:
Eligible employees are allowed 12 weeks of job-related paid leave for employees who are unable to work or telework so they may care for children if schools are closed or daycares are unavailable due to a public health emergency.
Pay Provided:
Employees may use accrued personal or sick leave during the first 10 days of leave.
After 10 days, employees will be paid at two-thirds of their regular rate of pay.
Payments are capped at $200 per day and an aggregate of $10,000 total.
Job Restoration:
With certain exceptions, eligible employees who take leave are entitled to be restored to the position they held when the leave commenced or to obtain an equivalent position with their employer. This Act limits this rule for employers with fewer than 25 employees if certain circumstances are present.
Exemptions:
Employers of employees who are healthcare providers or emergency responders may elect to exclude such employees from eligibility for paid leave.
Businesses with fewer than 50 employees may be exempted by the DOL under certain circumstances.
Effective Date:
The Act is effective April 2, 2020 and will expire on December 31, 2020.
Emergency Paid Sick Leave Act
Employees Covered:
Employers with fewer than 500 employees.
Employers Covered:
Employees are covered regardless of how long the employee has worked for the employer.
Leave Provided:
Full-time employees are allowed 10 days (80 hours) of paid sick leave when the employee is unable to work or telework for circumstances related to the coronavirus.
Part-time employees are allowed the number of hours of paid sick time equal to the numbers of hours they work on average over a 2 week periods.
Circumstance under which paid sick leave may be utilized:
Sick leave can be used when employees are unable to work or telework because they:
• are subject to a government quarantine or isolation order related to COVID-19,
• have been advised by healthcare providers to self-quarantine due to COVID-19,
• are experiencing symptoms of COVID-19 and seeking a medical diagnosis,
• are caring for an individual subject to a quarantine order or self-quarantine,
• are caring for children if schools are closed or their caregivers are unavailable because of a public health emergency, or
• are experiencing substantially similar conditions as those specified by the Secretary of Health and Human Services.
Pay Provided:
Employees must be paid the higher of their regular rate of pay or the federal or local minimum wage.
Payments are capped at $511 per day and an aggregate of $5,100.
Employees absent to care for a sick family member or a child unable to attend school receive two-thirds of the rate of pay they would otherwise receive, which is capped at $200 per day and an aggregate of $2000 total.
Coordination with Existing Leave Policies:
The paid sick leave benefits of the Act are in addition to any other employer provided leave provided by an employer.
Employers may not require employees to use any employer provided leave before the employee using the paid sick leave under the Act.
Employers are allowed to modify existing leave programs after the law goes into effect.
Exemptions:
Employers of employees who are healthcare providers or emergency responders may elect to exclude such employees form eligibility for paid leave.
Businesses with fewer than 50 employees may be exempted by the DOL under certain circumstances.
Effective Date:
The Act is effective April 2, 2020 and will expire on December 31, 2020.