FAMILIES FIRST CORONAVIRUS RESPONSE ACT

From my partner Ellen Leibovitch:

Subject: URGENT EMPLOYMENT LAW UPDATE - FAMILIES FIRST CORONAVIRUS RESPONSE ACT

Importance: High

The Families First Coronavirus Response Act (“Act”) was signed into law on March 18, 2020, takes effect on April 2, 2020 and expires on December 31, 2020. This email briefly summarizes those aspects of the Act applicable to employers with fewer than 500 employees.

EMERGENCY FAMILY & MEDICAL LEAVE

The Act amends the Family & Medical Leave Act (“FMLA”) by providing 12 weeks of job-protected leave for employees who have been on the job for at least 30 days, as follows:

-        The emergency leave must be for an employee to quarantine due to exposure to or symptoms of coronavirus, to care for an at-risk family member who is quarantined due to exposure to or symptoms of coronavirus, or care for a child if the child’s school is closed or a child-care provided is unavailable due to the virus.

-        The first ten (10) days of the leave may be unpaid (though the employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave), but the rest of the leave must be paid as follows: two (2) weeks of fully paid leave, and the remaining leave paid at two-thirds (2/3) the employee’s usual pay.

-        Paid leave shall not exceed $200 per day and $10,000 in the aggregate.

-        While employees taking this leave have the right to be reinstated in a position with equivalent pay and benefits, employers with fewer than 25 employees do not have to reinstate an employee if the position held by the employee when the leave commenced does not exist due to economic conditions or changes of operation that were caused by the public health emergency.

-        Employees who are emergency responders or who work for health care providers may not be eligible for emergency FMLA.

-        Employers with less than 50 employees can be exempted from the Act’s requirements when the imposition of such requirements would jeopardize the viability of the business as a going concern.

EMERGENCY PAID SICK LEAVE

The Act also allows for paid sick leave for employees (the “Emergency Paid Sick Leave Act”) who are unable to work due to: 

1.    A governmental quarantine or isolation order related to COVID-19;

2.    Advice from a health care provider to self-quarantine due to concerns related to COVID-19;

3.    The employee experiencing symptoms of coronavirus and seeking a medical diagnosis;

4.    A need to care for or assist an individual who is subject to a governmental quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or

5.    A need to care for a child whose school or place of childcare is closed or unavailable due to coronavirus.

Other highlights of the Emergency Paid Sick Leave Act include the following:

-        Employers with fewer than 500 employees are required to provide up to 80 hours of paid sick leave for full time employees. Part-time employees can receive an amount equal to the to the number of hours the employee works on average over a two-week period. 

-        Employers may not require that employees use other paid leave time prior to using emergency paid sick time. 

-        Employers may not require employees who request paid sick leave to find a replacement to cover for their scheduled hours as a condition to grant the request.

-        Sick time will not carry over after 2020.

-        As with emergency FMLA, employers of health care providers and emergency responders may elect to exclude such employees from the application of the paid sick leave; and employers with less than 50 employees can be exempted from the Act’s requirements.

-        This section of the Act makes it unlawful for an employer to discharge, discipline, or in any other manner discriminate against any employee (1) who takes leave in accordance with this Act, or (2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding. 

-        An employer who fails to provide sick leave as required under the Act shall (1) be considered to have failed to pay minimum wages in violation of section 6 of the Fair Labor Standards Act of 1938 and (2) be subject to the penalties described thereunder with respect to such violation, including liquidated (double) damages for willful violations.

-        As with other labor law posters, employers will be required to post notice of the Emergency Paid Sick Leave Act (to be provided by the Secretary of Labor) in a conspicuous place on the employer’s premises within seven (7) days from enactment.

TAX CREDITS

Employers who pay employees for emergency FMLA leave or sick leave under the Act are entitled to refundable tax credit taken against the employer’s share of certain employment taxes. The credits are limited up to $200 per day for up to 10 days for each employee who takes paid sick leave, but if the sick leave was for the employee’s own covered quarantine or isolation or for the time for the employee to receive his or her own diagnosis, the credit is limited to up to $511 per day. 

CONCLUSION 

This time of crisis requires everyone to be flexible – employers and employees – and employers must definitely update their time off and sickness policies to reflect the changes imposed by the Act. Employers who are able to allow employees to work from home and remain productive, should do so. Employees who cannot work remotely and who do not qualify for emergency FMLA or sick leave should continue to work for as long as local ordinances do not require sheltering in place and so long as the employer has work for the employee. The bigger issue, and one which Congress may next have to address, is the slowing down of commerce and the lack of work in many sectors of the business community. More on that to follow as the matter winds its way through the halls of government.

As always, please stay safe and take care of yourselves and your families.