President Trump has signed emergency legislation that expands the Family and Medical Leave Act to cover coronavirus related leave and provides for emergency paid sick leave.
The legislation, which is known as the Families First Coronavirus Response Act (the “Act”), applies to all employers with 500 or fewer employees. The Act will take effect within fifteen (15) days and will be in effect until December 31, 2020.
Emergency FMLA Leave
Under the Act, employers with fewer than 500 employees are required to provide employees who have been employed for at least thirty (30) calendar days with up to twelve (12) weeks of public health emergency leave. Public health emergency leave is available where an employee is unable to work (or telework) due to a need for leave to care for a son or daughter under the age of 18 if the school or place of care has been closed or the child care provider is unavailable due to the coronavirus.
The first two (2) weeks of leave do not have to be paid, but employees may elect to use their accrued paid time off during this period. After the first two (2) weeks of leave, employees must be paid a minimum of two-thirds (2/3) of the employee’s regular rate of pay for the number of hours the employee would otherwise be normally scheduled to work, with a cap of $200 per day or $10,000 total.
The Act does provide some breaks for small businesses. First, if an employer has fewer than twenty-five (25) employees, the employer is not required to restore an employee to the same position if the employee’s position no longer exists due to economic conditions or other changes in operating conditions. The employer must, however, make reasonable efforts to restore an employee to an equivalent position. Second, if an employer has fewer than fifty (50) employees, the employer may be exempt from providing leave if the viability of the business is in jeopardy due to the Act’s requirements. A small employer must petition the Department of Labor to receive an exemption.
Paid Sick Leave
The Act also requires employers to provide employees, regardless of the duration of their employment, with paid sick time to the extent an employee is unable to work (or telework) due to a need for leave because:
- The employee is subject to a 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 his son or daughter if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions;
- The employee is caring for an individual who is subject to 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; or
- 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.”
Full-time employees are entitled to up to eighty (80) hours of paid sick leave and part-time employees are entitled to a number of hours equal to the number of hours that the part-time employee works, on average, over a two (2) week period. The amount of leave pay will be equal to the employee’s normal rate of compensation, unless the employee is caring for a child or individual affected by the coronavirus. In those cases, the employee will receive two-thirds of their regular rate of compensation. Employee pay is capped at $511 per day or $5,110 total if an employee takes paid sick leave because the employee is subject to a quarantine or isolation order, has been advised by a health care provider to self-quarantine, or is experiencing coronavirus symptoms and seeking a medical diagnosis. If an employee takes paid sick leave for any other reason listed above, employee pay is capped at $200 per day or $2,000 total.
The Act provides certain tax credits to employers who must provide emergency FMLA or paid sick leave under the Act and employers are required to post notices advising employees of their rights under the Act.
For additional guidance on managing coronavirus related issues at your workplace, please see additional information provided by our employment law group. Topics include Employer Best Practices for Responding to the Coronavirus/COVID-19 and The Coronavirus: Unemployment Compensation. In addition the websites of the CDC, Occupational Safety and Health Administration and Equal Employment Opportunity Commission are useful resources for employers.
If you have any questions regarding the coronavirus and your company’s employees, please contact a member of our employment law team.
This post was written by Rachel Felton