The new law requires private companies with less than 500 employees to pay sick leave for COVID-19. Many may be surprised that it also expands the Family Medial Leave Act to cover employees who must stay home to take care of children due to school-closures related to COVID-19.
The Families First Coronavirus Response Act will take effect April 1, 2020, and will remain in effect until December 31, 2020.
Who Does It Apply To?
Both the emergency FMLA and emergency paid sick leave requirements apply to private employers with less than 500 employees (and some governmental entities).
Emergency Paid Sick Leave
The Act requires that private companies with fewer than 500 employees provide their employees with emergency paid sick leave.
Paid sick leave amounts:
- Full-time employees receive 80 hours of emergency paid sick leave.
- Part-time employees receive emergency paid sick leave equivalent to the average number of hours worked in a two-week period.
- Unused emergency paid sick time does not carry over from year to year.
- Emergency paid sick leave is in addition to whatever sick leave you already offer in your company policy.
The Rules:
- Emergency paid sick leave is not accrued, and all leave is available for immediate use regardless of how long the employee has worked for your company.
- You cannot require a worker to use any other available paid leave before using the emergency paid sick time.
- Employees are eligible for emergency paid sick leave if:
- They are subject to a federal, state, or local quarantine, or isolation order related to COVID-19.
- The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- An employee is caring for an individual described in #1 or #2 above.
- The employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of the 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.
- Workers under multiemployer collective bargaining agreements whose employers pay into pension plans will have access to paid emergency leave.
- Employers are prohibited from requiring workers to find replacements to cover their hours during time off.
- Employers are prohibited from discharging or discriminating against workers who take emergency paid sick leave or who file a complaint against the employer related to such.
- Employers must post a notice containing information regarding the emergency sick leave provisions; the Labor Department is to create a model notice no later than April 9, 2020.
Pay:
- Employees that are absent due to sickness, an isolation or quarantine order, or isolation advice from a health care provider are compensated at the higher of their regular rate, the federal minimum wage, or the local minimum wage, but not to exceed $511 per day and $5,110 total.
- If the employee is absent to care for another person for reasons protected under the law, including for a child unable to attend school, or because they meet the criteria for similar conditions, they are compensated at 2/3 of the rate they would otherwise receive, but not to exceed $200 per day and $2,000 total.
- Employers may take a payroll tax credit equal to 100% of the emergency paid sick leave paid by the employer under this provision of the Act for each quarter.
Exemptions:
- The Secretary of Labor is authorized to exempt small businesses with fewer than 50 employees “when the imposition of such requirements would jeopardize the viability of the business as an ongoing concern.”
- Emergency Paid Family & Medical Leave:
- The Act requires that private companies with fewer than 500 employees also provide their employees with emergency paid family and medical leave (FMLA) to care for their child under 18 years of age due to COVID-19-related school or childcare closures. Unlike other provisions of the FMLA, this provision applies even to employers with fewer than 50 employees.
Emergency Paid Family & Medical Leave
The Act requires that private companies with fewer than 500 employees also provide their employees with emergency paid family and medical leave (FMLA) to care for their child under 18 years of age due to COVID-19-related school or childcare closures. Unlike other provisions of the FMLA, this provision applies even to employers with fewer than 50 employees.
Amount:
Full-time and part time employees are eligible for up to 12 weeks of emergency paid family and medical leave (FMLA).
The rules:
- Workers must be employed by the company for 30 calendar days or more. The requirement that the employee must be employed for a year and work 1,250 hours in a location where there are 50 or more employees within a 75-mile radius does not apply.
- The child’s elementary or secondary school or place of care must be closed, or the childcare provider is unavailable, due to a “public health emergency.” (A public health emergency means an emergency with respect to COVID-19 declared by a federal, state, or local authority.)
- The employee cannot work or telework while providing care for their child(ren).
- Workers under multiemployer collective bargaining agreements whose employers pay into pension plans will have access to paid emergency leave.
- In general, the employee on leave must be restored to his or her prior position when they return; however, this requirement does not apply to businesses with fewer than 25 employees if, because of the current operating conditions due to the public health emergency, no equivalent position is available for the employee then or, even with the employer’s reasonable efforts to contact the employee, within the earlier of (i) one year from the date of qualifying need, or (ii) 12 weeks after the leave concluded.
Pay:
- The first 10 days of leave can be unpaid; however, an employee could choose to use accrued vacation days or other available paid leave for those days if available to them. In most instances, the emergency paid sick leave would cover this 10-day period.
- After 10 days, employees receive a benefit from their employers equal to at least two-thirds of their normal pay rate. The paid leave is capped at $200 per day and $10,000 total.
- Employers may take a payroll tax credit equal to 100% of the paid leave paid by the employer under this provision of the Act for each quarter.
Exemptions:
The Secretary of Labor is authorized to exempt small businesses with fewer than 50 employees “when the imposition of such requirements would jeopardize the viability of the business as an ongoing concern.”