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March 19, 2020

President Trump Signs Families First Coronavirus Response Act, Allowing Emergency Paid Sick Leave and Emergency Paid Leave Under FMLA

Last night, President Trump signed the Families First Coronavirus Response Act (H.R. 6201) after it was approved by the Senate earlier in the day. This act amends an earlier version of H.R. 6201 that was passed by the House of Representatives over the weekend. The act applies to employers with fewer than 500 employees and covered public-sector employers.

The act contains two main components: the Emergency Paid Sick Leave Act, which provides paid sick time to employees unable to work or telework due to a need for leave based on specified COVID-19-related reasons; and the Emergency Family and Medical Leave Expansion Act, which provides unpaid and paid leave under the Family and Medical Leave Act (FMLA) for employees who are unable to work or telework due to a need for leave to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency.

The act will become effective on April 2.

Emergency Paid Sick Leave Act

Entitlement to Leave

Employers must provide paid sick time to an employee who is unable to work or telework due to a need for leave because:

  • The employee is subject to a federal, state, or local quarantine of 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 COVID-19 symptoms and is seeking a medical diagnosis.
  • The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is caring for a child whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 precautions.
  • The employee is experiencing any other substantially similar conditions specified by the secretary of the Department of Health and Human Services.

Duration of Paid Sick Time

  • Full-time employees: 80 hours of paid sick time
  • Part-time employees: The average number of hours worked over a two-week period

Paid sick time will cease beginning with the employee’s next scheduled shift immediately following the termination of the need for paid sick time.

Payments for Paid Sick Time

For paid sick time taken because of an employee’s own conditions (i.e., subject to quarantine or isolation order, advised to self-quarantine, symptoms of COVID-19 and seeking a medical diagnosis), the employee will receive:

  • The higher of the employee’s regular rate or the applicable minimum wage not to exceed $511 per day ($5,110 in total)

For paid sick time taken to care for another individual or for a child whose school or care is unavailable, the employee will receive:

  • Two-thirds the rate the employee would otherwise receive, up to $200 per day ($2,000 total)

Miscellaneous

  • Employees are immediately eligible for paid sick time, regardless of how long the employee has been employed by the employer.
  • Employers may not require employees to use other paid leave provided by the employer to the employee before the employee uses the paid sick time available to the employee under this act.
  • Employers may exclude employees who are health care providers or emergency responders from coverage.
  • The secretary of labor has the authority to issue regulations excluding certain health care providers and emergency responders from the definition of employee by allowing their employer to opt out and exempting small businesses with fewer than 50 employees from these requirements if they jeopardize the viability of a business as a going concern.
  • Employers must post notice of the requirements of the act on the premises of the employer where notices to employees are customarily posted; the secretary of labor is required to make available a model notice within seven days of the act’s enactment—that is, by March 25.
  • The provisions of the Emergency Paid Sick Leave Act end on December 31.

Employer Tax Credit

Employers will be entitled to a refundable payroll tax credit worth 100 percent of qualified paid sick time paid by an employer for each calendar quarter through the end of 2020. The tax credit is allowed as an offset against the employer’s portion of Social Security taxes.

The amount of qualified paid sick leave wages taken into account for each employee is up to $511 per day when an employee takes leave for the employee’s own conditions and up to $200 per day when an employee takes leave to care for sick family members or children unable to attend school.

In determining the total amount of an employer’s qualified sick leave wages paid for each calendar quarter, the aggregate number of days taken into account per employee may not exceed the excess of 10 over the aggregate number of days taken into account for the employee for all preceding calendar quarters, along with the employer’s expenses paid or incurred to provide and maintain a group health plan as properly allocable to the qualified sick leave wages.

Emergency Family and Medical Leave Expansion Act

Entitlement to Leave

Employees who are unable to work or telework due to a need for leave to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency, which is defined as “an emergency with respect to COVID-19 declared by a Federal, State, or local authority,” are eligible.

Employees are eligible for emergency FMLA leave if they have been employed for at least 30 days.

Unlike regular FMLA, which applies to employers with 50 or more employees, the Emergency Family and Medical Leave Expansion Act applies to employers with fewer than 500 employees and covered public-sector employers. Therefore, this act applies to employers with fewer than 50 employees.

Duration and Payment of Leave

First 10 Days

The first 10 days of emergency FMLA leave may consist of unpaid leave. During this time period, an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave, but an employer may not require an employee to do so.

Subsequent 10 Weeks

After the first 10 days of emergency FMLA leave, the employer must provide paid leave, generally at two-thirds of the employee’s regular rate of pay for the number of hours the employee would otherwise be scheduled to work.

Paid emergency FMLA leave shall not exceed $200 per day ($10,000 total).

Restoration to Position

Employers with 25 or more employees must restore employees taking emergency FMLA leave to their same or equivalent positions when they return from leave without losing benefits. 

Employers with fewer than 25 employees are exempt from the restoration requirement if all of the following conditions are met:

The position held by the employee when the leave commenced does not exist because of economic conditions or changes in the employer’s operating conditions that affect employment and are caused by a public health crisis during the period of leave.

The employer makes reasonable efforts to restore the employee to an equivalent position.

When the employer’s reasonable efforts fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available for a period of one year starting at the earlier of when the qualifying need related to a public health emergency concludes or 12 weeks after the employee’s leave commences.

Miscellaneous

  • Employers may exclude employees who are health care providers or emergency responders from coverage.
  • The secretary of labor has the authority to issue regulations excluding certain health care providers and emergency responders from the definition of employee and exempting small businesses with fewer than 50 employees from these requirements if they jeopardize the viability of a business as a going concern.
  • If it is foreseeable that the eligible employee must take leave because of a qualifying need related to a public health emergency, the employer must be notified of the leave as is practicable.
  • Employers with fewer than 50 employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year are not subject to civil actions brought by their employees.
  • The provisions of the Emergency Family and Medical Leave Act are in effect through December 31.

Payroll Tax Credit

As with emergency paid sick leave, employers will be entitled to a refundable payroll tax credit worth 100 percent of qualified emergency FMLA leave paid by an employer for each calendar quarter through the end of 2020. The tax credit is allowed as an offset against the employer’s portion of Social Security taxes.

The amount of qualified emergency FMLA leave pay taken into account for each employee is capped at $200 per day and $10,000 for all calendar quarters, along with the employer’s expenses paid or incurred to provide and maintain a group health plan as properly allocable to the qualified emergency FMLA leave.

A full copy of the Families First Coronavirus Response Act (H.R. 6201) is available here.

These issues, as well other developments affecting employment as a result of COVID-19, will be discussed in detail during Barclay Damon’s free “NYS’s COVID-19 Sick Leave Act and Mandatory Workforce Reductions” webinar on Monday, March 23.

If you have any questions regarding the content of this alert, please contact Buster Melvin, partner, at emelvin@barclaydamon.com or another member of the firm’s Labor & Employment Practice Area.

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