On March 18, 2020, President Trump signed House Bill 6201-12, the Families First Coronavirus Response Act (“Coronavirus Response Act“) Public Law 116-127, for the purpose of making emergency supplemental appropriations for response to the pandemic. The Coronavirus Response Act includes, among other laws, both the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. Both Acts are effective April 2, 2020, and expire on December 31, 2020.
Emergency Family and Medical Leave Expansion Act
What changed?
- The Act amended the Family and Medical Leave Act to include an additional qualifying reason for a protected leave during the period beginning on the date the Act takes effect, and ending on December 31, 2020, because of a qualifying need related to a public health emergency.
- The Act adds a requirement that leave due to a qualifying need related to a public health emergency is paid (at rates calculated by the Act).
What employers are required to comply with the changes under the new Act?
- Employers who employ 50 or more employees (but less than 500) for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. However, public employers need only employ one employee to fall under the requirements of the Act.
- The Act excludes certain health care providers and emergency responders, as well as employers with less than 50 employees when the imposition of such requirements would jeopardize the viability of the business.
Which employees are eligible for leave under the new Act?
- The requirements of the FMLA eligibility continue to apply with the exception of the 12 month, 1250 hour requirement. Instead, an employee must only be employed for 30 or more calendar days in order to be eligible for this particular leave.
- The employee must be unable to work for a “qualifying need related to a public health emergency,” which is defined as when an employee is unable to work, including telework, due to a need to care for his/her son or daughter, who is under the age of 18, whose school or place of care has been closed due to a public health emergency.
- The term ‘public health emergency’ must be an emergency with respect to COVID-19 declared by a Federal, State, or local authority.
To what are employees entitled under the new Act?
- A qualifying employee may be entitled to a total of 12 work weeks of leave, 10 of which must be paid by the employer.
- The first 10 days of leave are unpaid and the employee may choose to use any accrued vacation leave, personal leave, or medical or sick leave for these first 10 days of unpaid leave.
- After the initial 10 days, an employer must pay the employee for the remaining eligible days. The method for calculating the amount due the employee is provided in the Act.
- The Act caps the amount of pay for an employee at $200 per day and $10,000 in aggregate.
Employee Reinstatement Rights
- Employees who elect to take leave under the Act maintain the same reinstatement rights as they would for other FMLA leave.
- An employer who employs less than 25 employees may be exempt from reinstatement requirements if certain conditions are met.
Emergency Paid Sick Leave Act
What changed?
- The Act created the Emergency Paid Sick Leave Act.
- The Act makes available additional sick leave to employees affected by the COVID-19 pandemic.
What employers are required to comply with the changes under the new Act?
- Private employers who employ less than 500 employees.
- All public employers regardless of number of employees.
- Certain health care providers and emergency responders are excluded.
Which employees are qualified for paid sick leave under the new Act?
- An employee who is unable to work, including telework, because:
- The employee is subject to 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 federal, state, or local quarantine or has been advised by a health care provider to self-quarantine due to concern related to COVID-19.
- 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 child care 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.
What are employees entitled to under the new Act?
- A qualifying full-time employee is entitled to 80 hours of paid sick leave.
- A qualifying part-time employee is entitled to a number of hours equal to the number of hours that such employee works, on average, over a two-week period of paid sick leave.
- Any paid sick leave granted under the Act cannot be carried over to the next year.
- Any rights to sick leave under the Act terminate once the employee no longer qualifies for leave as defined above.
- Employers may not require that the employee provide a replacement during their use of sick leave.
- Employers must post notice of its employees’ rights to sick leave under the Act where it typically posts notices to employees. The Notice is being prepared by the Department of Labor.
- An employer may not discharge, discipline, or in any other manner discriminate against any employee who takes leave under the Act and has filed any complaint or instituted any hearings in relation to the Act.
- Employees are entitled to a maximum of $511 per day and $5,110 in aggregate for using sick leave for the following reasons:
- The employee is subject to 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.
- Employees are entitled to a maximum of $200 per day and $2,000 in aggregate for using sick leave under the Act for the following reasons:
- The employee is caring for an individual who is subject to federal, state, or local quarantine or has been advised by a health care provider to self-quarantine due to concern related to COVID-19.
- 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 child care 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.
- There are special rules for calculating wages for the care of family members and employees whose hours of work vary.
Other Provisions
- Not later than 15 days after the date of the enactment of the Act, the Secretary of Labor shall issue guidelines to assist employers in calculating the amount of paid sick time.
After the first workday (or portion thereof) that an employee receives paid sick time under the Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.
