The U.S House of Representatives has passed the Families First Coronavirus Response Act (the “Act”), which, among other things, expands the Family and Medical Leave Act (FMLA) and provides paid sick leave in an effort to confront the coronavirus. The Senate is expected to approve the measure soon. The Act will take effect not later than 15 days after enactment.
With respect to the FMLA, the Act (if approved by the Senate) expands FMLA-eligibility until December 31, 2020. Here is a summary of the FMLA-related changes. Unless noted otherwise, these changes would apply only to the FMLA provisions regarding leave based on a “qualifying need related to a public health emergency,” which is leave to address the coronavirus response and impact (“emergency leave”).
“Qualifying need related to a public health emergency” means employee leave:
- to comply with government recommendations or health care provider’s orders because the employee’s presence at work would pose a health risk (as based on exposure to the virus or symptoms of the virus) or because the employee cannot perform his/her job and comply with a government recommendation or physician’s order.
- to care for a family member whose exposure to others poses a health risk because of the family member’s exposure to the virus or, exhibition of symptoms.
- to care for an 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 (“an emergency with respect to coronavirus declared by a Federal, State, or local authority”)
Under the Act,
- Employees who have been employed for at least 30 calendar days prior to requesting emergency leave are eligible for emergency leave.
- The threshold for employer coverage is changed to “fewer than 500 employees.”
- The definition of “parent” is modified to include:
- a biological, foster, or adoptive parent of the employee
- a stepparent of the employee
- a parent-in-law of the employee
- a parent of a domestic partner of the employee
- a legal guardian or other person who stood in loco parentis to an employee when the employee was a child.
- The definition of “family member” is modified to include:
- a parent of the employee
- a spouse of the employee
- a son or daughter, who is under 18 years of age, of the employee
- an individual who is a pregnant woman, senior citizen, individual with a disability, or has access or functional needs and who is a son or daughter of the employee, a next of kin of the employee or a person for whom the employee is next of kin; or a grandparent or grandchild of the employee.
The first 14 days of emergency leave may be unpaid, however, an employee may voluntarily use accrued paid leave. After the first 14 days, employers must “provide paid leave for each day of [emergency] leave that an employee takes after taking leave under such section for 14 days.” The paid leave calculation:
- must be at least two-thirds of an employee’s regular rate of pay under the FLSA.
- must be for the number of hours an employee would normally work. Note: the Act explains how to calculate leave for employees who work an irregular schedule.
Employers with fewer than 25 employees need not restore employees to their positions if the employee takes emergency leave and the position no longer exists because of economic conditions or changed circumstances caused by the public health emergency. However, an employer must try to place the employee in an equivalent position. If that fails, the employer must contact the employee about employment options for either a year after the emergency leave begins or the need for emergency leave ends.
As for the Emergency Paid Sick Leave provisions, employers must provide employees paid sick time:
- To self-isolate because the employee is diagnosed with coronavirus.
- To obtain a medical diagnosis or care if an employee is symptomatic.
- To comply with a government or health care provider recommendation regarding an employee’s physical presence at work based on the employee’s exposure to the virus or exhibition of symptoms.
- To care for or assist a family member of the employee who is self-isolating because of an actual diagnosis or is experiencing symptoms and needs a diagnosis, or based on a government
- To care for an employee’s child if the child’s school or child care provider is closed or unavailable due to coronavirus.
The paid sick leave hours for full time employees is 80 hours and the paid sick leave for part-time employee is based on the employee’s average hours over a two- week period. The Emergency Paid Sick Leave is in addition to existing paid leave policies and employers may not modify existing policies in order to avoid providing additional leave. Employers man not require employees to use other paid leave before using Emergency Paid Sick Leave.
The leave must be paid at an employee’s regular rate and may not be less than the minimum wage. However, if the leave is to care for an employee’s family member, the rate must be two-thirds of the regular rate.
There are more nuances and details to the Act that are not included in this summary. Please stay tuned for additional information. We can provide guidance as you attempt to navigate these issues. Call us today at (410) 727-4300.