COVID-19 Response: The Families First Coronavirus Response Act Creates Significant New Rights to Paid Employee Leave
Newark, N.J. (March 16, 2020) - The Families First Coronavirus Response Act was approved by the U.S. House or Representatives on March 13, 2020 (the Act). The Act would require that covered employers grant up to 12 weeks of emergency family medical leave and 80 hours of sick leave to employees impacted by the coronavirus. Most of the leave is paid, and extends to employees with children whose schools or day care providers have been closed due to a coronavirus-related public health emergency.
The Act will now proceed to the Senate. While further revisions are possible in light of concerns about the Act’s impact on small businesses, it is likely some form of the Act will become law shortly.
Emergency Family and Medical Leave Expansion Act
The Act is a package of laws, including the Emergency Family and Medical Leave Expansion Act, the Emergency Paid Sick Leave Act and the Tax Credits for Paid Sick and Paid Family and Medical Leave Act.
From 15 days after it is signed until December 31, 2020, the Emergency Family and Medical Leave Expansion Act (EFMLEA) requires that employers grant Family and Medical Leave Act (FMLA) leave to employees who require leave “because of a qualifying need related to a public health emergency.” The EFMLEA, however, drastically redefines many of these familiar terms.
How is EFMLEA leave different from FMLA leave?
The FMLA provides for 12 weeks of unpaid leave. Under the EFMLEA, however, leave is unpaid only for the first 14 days. For the remainder of the 12 weeks, the employee must be paid at a rate is “not less than two-thirds of an employee’s regular rate of pay” and, in most cases, for the number of hours the employee would otherwise be normally scheduled to work.
Who is covered?
Under the FMLA, only employers with 50 or more employees are required to offer leave. The EFMLEA drastically revised the scope of covered employers, extending it to any employer with “fewer than 500 employees.” The new law also states that the Secretary of Labor may issue regulations that, among other things, exempt business with less than 50 employees from coverage “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”
Under the FMLA, employees were generally required to work 12 months and 1250 hours before becoming eligible for leave. The EFMLEA extends coverage to any employee who has been employed for 30 or more calendar days by the employer from which leave is being requested.
What circumstances create a basis for leave?
Under the FMLA, employees can take leave for their own serious medical conditions, to care for a family member with a serious medical condition, or for the birth or adoption of a child. Under the EFMLEA, by contrast, leave is available to an eligible employee if:
(A) a public official recommends or orders that the employee’s presence in the workplace would jeopardize the health of others because the employee was exposed to or exhibited symptoms of the coronavirus, and the employee could not comply with the recommendation or order and perform the functions of the job;
(B) a public official recommends or orders that the presence in the community of a family member of the employee would jeopardize the health of other individuals in the community because was exposed to or exhibited symptoms of the coronavirus; or
(C) the employee is needed to care for a child (under 18 years of age) whose school or place of care has been closed, or the child care provider of the employee’s child is unavailable, due to a public health emergency.
The Act states that the term “public health emergency” means “an emergency with respect to coronavirus declared by a Federal, State, or local authority.”
How does EFMLEA leave interact with other forms of leave?
The FMLA permits an employer to require an employee to take FMLA leave concurrently with other types of leave or paid time off. Under the EFMLEA, only the employee can elect to substitute any accrued vacation, personal, medical, or sick leave for unpaid leave. The employer may not require an employee to substitute any other leave for EFMLEA leave.
Presumably, many employees will elect to substitute paid leave for the first 14 days of EFMLEA leave (which may be unpaid), while using paid EFMLEA leave only for the remainder of the 12 weeks. Therefore, in many cases (and particularly in jurisdictions with paid sick leave laws that cover school closings due to public health emergencies), employees may take 12 weeks of EFMLEA leave followed by significant periods of leave made available to them by state or local sick leave laws or company policies.
How are rights under the EFMLEA communicated to employees?
The EFMLEA does not contain an express notice provision. However, it appears that the notice provisions of the FMLA require employers to provide notice of EFMLEA rights.
The Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave Act (EPSLA) provides for 80 hours of paid sick leave for reasons similar to those described in the EFMLEA. Part-time employees will be entitled paid sick leave in an amount equal to the average number of hours worked, on average, over a 2-week period.
Like the EFMLEA, the EPSLA applies to employers with fewer than 500 employees. Emergency sick leave is available when (i) an employee or an employee’s family member has been diagnosed with or is experiencing symptoms of the coronavirus, or has been determined to jeopardize the health of others; or (ii) an employee needs to care for his or her child whose school or place of care has been closed, or the child care provider of the employee’s child is unavailable, for coronavirus-related reasons.
When an employee takes Emergency Sick Leave due to the employee’s own health condition, the leave is paid at the employee’s regular rate or the minimum wage (which ever higher). If the employee takes leave due to the health condition of a family member or the closing of the school or place of care of a child, that leave is paid at two-thirds of the regular or minimum wage rate.
It is clear that the EPSLA requires employers to provide an additional 80 hours of paid sick leave, regardless of their preexisting policies. Specifically, it provides that for employers that already provide paid leave, “the paid sick time under this Act shall be made available to employees of the employer in addition to such paid leave.” Furthermore, “the employer may not change such paid leave on or after” the date the EPSLA is enacted to avoid providing additional leave.
An employee may first use Emergency Sick Leave before the employee uses other accrued paid sick time, and an employee cannot require the employee to use other paid sick time first. Unused Emergency Sick Leave will not carry over from one year to the next and does not need to be paid out at the end of an individual's employment.
In addition, employers will be required to post a notice informing employees of their rights to Emergency Sick Leave.
Tax Credits for Paid Sick and Paid Family and Medical Leave
The Families First Coronavirus Response Act provides payroll tax relief for wage payments made by employers pursuant to the requirements of the Emergency Family and Medical Leave Expansion Act or the Emergency Paid Sick Leave Act. The credit for wages paid under the Emergency Paid Sick Leave Act will be capped at $511 per day for days on which full pay is required and $200 per day for days on which two-thirds pay is required. EFMLEA credits are capped at $200/day (and at $10,000 with respect to all calendar quarters).
Because the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act are effective in 15 days and many employees are already in the midst of school and daycare closings that trigger the requirements of the Act, employers must be prepared to implement and communicate new policies that comply with these laws.
Lewis Brisbois has formed a COVID-19 Attorney Response Team to help your business with the myriad legal issues arising from the outbreak. Visit our COVID-19 Response Resource Center to find an attorney in your area.
Michael D. Thompson, Partner
Peter T. Shapiro, Partner
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