In the Law: Families First Coronavirus Response Act

March 24, 2020

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”). The new law takes effect on April 2, 2020 and will remain in place until December 31, 2020. This alert identifies two divisions within the Act: the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

Emergency Paid Sick Leave Act 

Eligibility: All employees of employers with fewer than 500 employees, regardless of their tenure with their employer, are eligible for emergency sick leave under the Act. Employers with fewer than 50 employees may later be exempted by regulations if the Act would jeopardize the business’ viability. The Secretary of Labor may also exclude certain health care providers and emergency responders from the definition of employee for good cause.

Qualifying Reasons for Taking Sick Leave: An eligible employee may take paid sick leave if he/she is unable to work (including telework) because:

  1. The employee is subject to federal, state or local quarantine or isolation order related to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19 (self-imposed quarantine without medical advice does not qualify under the Act).
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order described above or who has been advised to self-quarantine as described above.
  5. The employee is caring for his/her child under 18 years of age whose school has closed or child care provider has become unavailable due to COVID-19 precautions.
  6. 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.

Duration and Compensation for Paid Sick Leave for Employees

Full-time employees are entitled to 2 weeks (80 hours) of paid sick leave. Part-time employees are entitled to paid sick leave based on the average number of hours the employee works over a 2-week period. Paid sick leave does not carry-over from one year to the next. Paid sick time ceases beginning the employee’s next scheduled work shift immediately following the end of the need for paid sick time.

An employee shall be paid based on the employee’s required compensation and the number of hours the employee would otherwise be normally scheduled to work. However, paid sick time shall not exceed $511 per day and $5,110 in total (for the abovementioned qualifying reasons (1), (2), or (3)); and $200 per day and $2,000 in total (for the abovementioned qualifying reasons (4), (5), or (6)). 

Reimbursements and Guidance for Employers

By April 2, 2020, the Secretary of Labor will issue guidelines to assist employers in calculating sick time due under the Act. The employer may seek reimbursement for the wages paid to employees taking emergency paid sick leave through tax credits applicable to the employer’s portion of Social Security taxes.

The employer may not require the employee to use other paid leave provided by the employer before using paid sick leave under the Act. Additionally, employers may not require employees to find a replacement employee to cover the hours during which the employee is using paid sick time.

An employer who violates the Act shall be considered to have violated federal law and be subject to penalties, to include but not limited to fines, payment of damages, and attorney’s fees.1 Nonetheless, the Act does not diminish the rights or benefits that an employee is entitled to under any other Federal, State, or local law; collective bargaining agreement; or existing employer policy.

Notice: Employers must post the Emergency Paid Sick Leave Act notice, prepared by the Secretary of Labor, in a conspicuous place on the premises where notices are customarily placed. The Secretary of Labor must make the model notice available no later than March 25, 2020.

Prohibition Against Unlawful Discharge, Discipline or Discrimination

The Act makes it unlawful to discharge, discipline, or discriminate in any manner against an employee for taking sick leave or initiating a lawsuit related to the Act.

Emergency Family and Medical Leave Expansion Act

From April 2, 2020 through December 31, 2020, the Emergency Family and Medical Leave Expansion Act temporarily expands both relief afforded under the Family and Medical Leave Act (“FMLA”) and the definition of employers and eligible employees to whom it applies. 

Eligibility: The Act applies to employers with fewer than 500 employees and expands the definition of eligible employees to include employees who have been employed for at least 30 calendar days. Employers who have less than 50 employees may be exempt if the Act would jeopardize the business’ viability.

Qualifying Need Related to a Public Health Emergency

The qualifying need requirement under the Act is met when an employee is unable to work (or telework) due to a need for leave to care for his/her child under 18 years of age because the child’s school or place of care has been closed, or the child care provider is unavailable due to an emergency with respect to COVID-19, as declared by a Federal, State, or local authority. A child care provider is defined as one who receives compensation for providing child services on a regular basis.

Paid Leave Under the Emergency Family and Medical Leave Expansion Act

The first 10 days may be unpaid. However, the employee may elect to use his/her sick or medical leave, personal leave, or accrued vacation as a paid leave alternative during this 10-day unpaid period. Thereafter, the employee may take up to 12 weeks of leave and receive no less than two-thirds of the employee’s regular pay rate for the number of hours regularly scheduled to work. In no event shall such paid leave exceed $200 per day and $10,000 in total.

Notice: If the need for leave is foreseeable, the employee must provide the employer with such notice as is practicable.

Restoration to Position

For employers with more than 25 employees, an employee who returns from leave is entitled to be reinstated to the same or an equivalent position. For employers with less than 25 employees, an employee who returns from leave must be returned to the same position as when the leave commenced unless the position does not exist due to economic conditions or other changes in operating conditions caused by the public health emergency. In that case, the employer must make reasonable efforts to restore the employee to an equal position and if those efforts fail, make reasonable efforts for at least one year to contact the employee if an equivalent position becomes available.

For questions or advice, please contact: Pamela Berman at: PBerman@RobinsKaplan.com or 617.859.2730.

Pamela Berman has devoted more than 30 years to the practice of commercial litigation both in Boston and across the East Coast. She focuses her practice on a broad range of business disputes, including real estate litigation, contract disputes, employment litigation, securities litigation, including the representation of broker-dealers, and defending clients in government investigations in the healthcare, financial and other industries. Her case history includes clients in health and life sciences; the financial industry, including banking and securities; manufacturing; and real estate.

1 Section 5105(a)(2) references 29 U.S.C. §§ 216 and 217 as appropriate enforcement measures. 

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