The U.S. Senate today passed, by a vote of 90-8, the Families First Coronavirus Response Act (the amended version). The President has signed the Act into law. The Act will be effective in 15 days — April 2, 2020 — and sunsets on December 31, 2020. The Act amends the Family and Medical Leave Act (FMLA) and mandates paid sick leave for coronavirus-related absences.
Emergency Family and Medical Leave Expansion Act
FMLA Expansion – Public Health Emergency Leave. The FMLA component of the bill permits leave for a “qualifying need related to a public health emergency” which permits leave when an employee is unable to work or telework because of the need to care for the employee’s son or daughter under 18 years of age if the child’s school or child care provider is closed or unavailable because of a public health emergency.
Eligibility. Employees who have been employed for at least 30 calendar days prior to requesting FMLA leave related to a public health emergency are eligible for the leave. The leave applies to employers with fewer than 500 employees, as well as covered public sector employers.
Use of FMLA. The first 10 days of public health emergency leave under the FMLA may be unpaid. An employee may voluntarily use accrued paid leave during this 10-day period.
After the first 10 days, employers must provide paid FMLA leave for the remaining leave period, up to a maximum of 12 weeks.
The leave must be paid at a rate of at least two-thirds of an employee’s regular rate of pay for the number of hours an employee would be scheduled to work.
The paid leave may not exceed $200 per day and $10,000 total, per employee.
Irregular Schedules. To determine pay for those who work an irregular schedule, employers must calculate the average number of hours the employee was scheduled per day over the six-month period ending on the date the employee takes leave, including leave hours. If an employee did not work for six months, employers must rely on the employee’s reasonable expectation, at the time of hiring, regarding the average number of hours per day that the employee would normally be scheduled to work.
Employee Notice. If the need to use leave is foreseeable, an employee must provide notice as soon as practical.
Job Restoration. Job restoration is required unless, for employers with fewer than 25 employees: (1) the employee’s position at the time leave began no longer exists due to economic conditions or changes in operating conditions caused by a public health emergency while the employee was on leave; and (2) the employer made reasonable efforts to restore the employee to a position equivalent to the position the employee held when leave commenced, with equivalent benefits, pay, and other terms and conditions of employment.
If restoration is not successful, the employer must make reasonable efforts to contact the employee if an equivalent position becomes available, for the one-year period beginning the earlier of the date on which the need for leave concludes or 12 weeks after the date on which the employee’s leave commenced.
Exclusions. Employers who employ health care providers or emergency responders may exclude such employee from the FMLA provisions of the Act. The Secretary of Labor may issue regulations regarding this exclusion. The Secretary of Labor may also exempt businesses with fewer than 50 employees from the Act’s requirements, if compliance would jeopardize business viability.
The legislation exempts employers with fewer than 50 employees within a 75-mile radius from FMLA-related civil damages.
The DOL should be issuing a mandatory notice positing, which employers must post.
Emergency Paid Sick Leave Act
The Families First Act also includes paid sick leave requirements.
Eligibility. All employees are covered. All employers with fewer than 500 employees are covered, as are FMLA-covered public employers.
Reasons to Use Paid Sick Leave. Employers must provide paid sick leave to employees who are unable to work or telework because:
- the employee is subject to a federal, state, or local quarantine or isolation order related to coronavirus;
- the employee has been advised by a health care provider to self-quarantine due to coronavirus related concerns;
- the employee is experience coronavirus symptoms and is seeking medical diagnosis
- the employee is caring for an individual who, due to the coronavirus: (a) is subject to an isolation or quarantine order from a federal, state, or local government; or (b) has been advised by a health care provider to self-quarantine;
- the employee is caring for a son or daughter if the school or place of care is closed or the child care provider is unavailable due to coronavirus; or
- the employee is experiencing “any other substantially similar condition specified” by the HHS Secretary in consultation with the Secretaries of Labor and Treasury.
Employers of health care providers and emergency responders may exclude such employees from the emergency paid leave.
Amount of Leave. Full-time employees are entitled to 80 hours of paid sick leave.
Paid sick leave for part-time employees is based on the employee’s average hours over a two-week period.
Paid sick leave does not carry over from year to year and ends beginning with the employee’s next scheduled work shift immediately following the termination of the need for paid sick leave.
Employees may not be required to use other paid leave before using emergency paid sick leave.
The Act does not diminish benefits or rights employees have under other laws, collective bargaining agreements, or existing policy.
Leave Payment. The leave must be paid at an employee’s regular rate (not less than the minimum wage). If the leave is to care for an employee’s family member, the leave must be paid at two-thirds of the employee’s regular rate.
Sick leave pay is capped per employee at $511 per day and $5,110 total if the leave is used because of a quarantine or isolation situation, or because the employee is experiencing symptoms of coronavirus and is seeking a medical diagnosis (the first three reasons above) and $200 per day ($2,000 total) for the latter three reasons (generally caring for others/school & daycare closures).
Employee Notice. After an employee receives emergency paid sick leave under the Act for the first time, employers may require the employee to follow reasonable call-out procedures in order to continue receiving paid sick time.
Replacements. Employers may not require employees to search for or find a replacement to cover the leave time.
Exceptions. Employers may deny paid sick leave to health care providers and emergency responders. The Secretary of Labor may issue regulations excluding certain healthcare providers and emergency responders and exempting small businesses (those with fewer than 50 employees) from the Act’s requirements if compliance would jeopardize the business.
Notice & No Retaliation. Employers must post a notice, to be developed or approved the Secretary of Labor. Retaliation for use of leave or because of a complaint or participation in a proceeding related to the Emergency Paid Sick Leave Act is prohibited.
Employers who do not pay the required sick leave are subject to violations under the FLSA.