On Saturday, March 14, 2020, the U.S. House of Representatives passed a bill providing sweeping measures to help address the impact of the COVID-19 national health emergency. Among other provisions, the Families First Coronavirus Response Act, H.R. 6201 (the Act), provides up to 14 days of paid sick leave and up to 12 weeks of paid family medical leave to help those dealing with exposure to, or diagnosis or symptoms of the novel coronavirus, including parents of children affected by school closures. The Act is expected to pass the Senate, but may be subject to further revisions. If passed, the Act will be effective no later than 15 days from March 14, 2020.
The Emergency Family and Medical Leave Expansion Act (E-FMLA)
Subject to limited exceptions, employers with fewer than 500 employees are required to provide E-FMLA to all employees who have been employed for at least 30 days before the leave is requested. Employers who are signatories to a multi-employer collective bargaining agreement (CBA) may fulfill their obligations by making contributions to a multiemployer fund or plan in an amount equivalent to the hours of E-FMLA each of its employees are entitled to under the Act.
Employers with fewer than 50 employees still have to provide E-FMLA leave but are not subject to civil liability for failing to do so. Further, the U.S. Department of Labor was given the authority to issue regulations to exempt small businesses with fewer than 50 employees from the requirements of E-FMLA when the imposition of such requirements would jeopardize the viability of the business as a going concern.
Type of leave provided
Under E-FMLA, employers must provide employees with unpaid leave for the first 14 days of leave. While the first 14 days of leave are unpaid under the E-FMLA, this period of leave may be paid under the Emergency Paid Sick Leave Act (the details of which are set forth, below). Employees can also elect to use other available paid leave (vacation, personal, medical, sick) concurrently with E-FMLA, but employers cannot require employees to do so.
After the first 14 days of leave, employers must pay employees two-thirds their regular rate of pay for the number of hours the employee normally would be scheduled to work over that time period.
Qualifying reasons for leave
Employees are entitled to up to 12 weeks of E-FMLA (less any Family and Medical Leave Act (FMLA) leave the employee has already used in the preceding 12 months) for any of the following reasons:
- A public health official or health care provider has determined the employee’s physical presence on the job would jeopardize the health of others because the employee has been “exposed” to coronavirus or the employee is exhibiting symptoms of coronavirus, and the employee cannot perform his or her job remotely;
- The employee is caring for a family member who a public health official or health care provider has determined was exposed to coronavirus or is exhibiting symptoms of coronavirus and presence of the family member in the community would jeopardize the health of others; or
- The employee is caring for a son or daughter under the age of 18 whose school was closed or whose child care provider is unavailable due to the coronavirus public health emergency.
Under E-FMLA, family member is defined as: parent, spouse, son/daughter under 18, daughter/granddaughter over 18 if pregnant, daughter/son or granddaughter/grandson with disabilities over 18, and grandparent.
If the need for leave is foreseeable, employees must provide as much notice as is practicable under the circumstances.
Employers must restore employees who take E-FMLA to an equivalent position upon their return to work. Employers with 25 employees or more must make reasonable efforts to restore the employee to an equivalent position with equivalent pay and benefits, unless the position was eliminated due to: (1) economic conditions; or (2) other changes in operating conditions affecting employment and caused by the coronavirus emergency. If an equivalent position is not available, the employer must make reasonable efforts for one year (after the employee’s leave starts or after the coronavirus health emergency concludes) to contact the employee regarding any equivalent positions that become available.
Except for the exemption for employers with 50 or fewer employees, violation of the E-FMLA is subject to the same penalties and enforcement mechanisms as the FMLA.
The Emergency Paid Sick Leave Act (E-PSL Act)
Subject to limited exceptions, employers with fewer than 500 employees are required to provide E-PSL to all employees — regardless of how long they have been employed by the employer. This includes persons or entities acting “in the interest of an employer in relation to an employee,” such as corporate officers. Employers who are signatories to a multi-employer CBA may fulfill their obligations by making contributions to a multiemployer fund or plan in an amount equivalent to the hours of E-FMLA each of its employees are entitled to under the Act.
Type of leave provided
Under the E-PSL Act, employers must provide full-time employees with 80 hours of paid sick time, and part-time employees with paid sick time equivalent to the number of hours the employee works on average over a two week period.
When an employee is taking leave because the employee was exposed to or has symptoms of coronavirus, pay is calculated based on the greater of the employee’s regular rate of pay or minimum wages for the number of hours the employee would normally be required to work during the period of leave. When the employee is taking leave to care for a family member or a child whose school is closed, pay is two-thirds of the wages the employer would pay under the E-PSL Act if the employee was sick or exposed.
Relationship to other paid leave
This E-PSL is in addition to any paid sick, medical, vacation or personal leave the employee has accrued as of the date of the Act. While employees may elect to substitute any other accrued paid leave for the E-PSL, employers may not require that employees use other paid leave before using E-PSL.
Employers may not require that employees obtain a replacement to cover the hours employees are missing due to the use of paid sick time.
Employers must post a notice regarding E-PSL where other employment notices or posting advising of the requirements of the Act. An employer may require that employees follow reasonable notice procedures in order to continue receiving paid sick time.
Qualifying reasons for leave
Employees are entitled to E-PSL for any of the following reasons:
- Self-isolation because of coronavirus diagnosis;
- To obtain a medical diagnosis if the employee is experiencing coronavirus symptoms;
- To comply with the order of a public health care official or health care provider that the employee’s presence at work would jeopardize the health of others because the employee was “exposed” to coronavirus or the employee is exhibiting symptoms of coronavirus;
- To care for a family member who is self-isolating because of a coronavirus diagnosis or is experiencing symptoms of coronavirus while awaiting a diagnosis or care, where a public health official or health care provider has determined the family member’s presence in the community would jeopardize the health of others; or
- To care for a child whose school has been closed or the child care provider is unavailable due to coronavirus.
Violation/Enforcement of the Paid Sick Leave Requirements
Under the E-PSL Act:
- It is unlawful for employers to discipline, discharge or in any manner discriminate against any employee who takes leave in accordance with the E-PSL Act or has filed a complaint or instituted a proceeding related to the E-PSL Act.
- Employers who violate the E-PSL Act are considered to have failed to pay minimum wages in violation of the Fair Labor Standards Act (FLSA) and are subject to the penalties set forth in Sections 16 and 17 of the FLSA.
Tax Credits for Paid Sick and Paid Family and Medical Leave Act
The Act also provides a tax credit to employers for wages paid for sick leave covered by the legislation. The amount of the credit is capped at $511 of wages per day paid to each employee to care for themselves and capped at $200 of wages per day paid to each employee to care for a family member or child if their school is closed. Additionally, the credit is generally limited to 10 days of wages per employee. The credit is applied to the employer portion of the 6.2% Social Security Tax and is refundable if it exceeds the amount the employer pays in such payroll tax. The legislation provides a similar tax credit for self-employed individuals against the self-employment tax.
1 For variable hour employees, use the average number of hours worked in the 6 month period preceding the leave or, if employee has worked less than 6 months, the reasonable expectation of the average hours the employee would be anticipated to work.