By Andrew Fiske

On March 18, the president signed into law the “Families First Coronavirus Response Act”, which creates new emergency categories of leave for eligible employees concerning COVID-19. The Act establishes new emergency leave under FMLA, and a new category of emergency paid sick leave, each to be paid for by payroll tax credits to employers, for the period between April 2, 2020 and December 31, 2020.

In summary, the new types of leave include:

  • New FMLA Emergency Leave. Employers with 500 or fewer employees must allow a combination of 10 days of unpaid leave and subsequent additional paid leave (capped per employee at $200/day and $10,000 in total) for employees who cannot work or telework because of the need to care for children whose schools or child care providers have closed because of COVID-19
  • New Paid Sick Leave. Private employers with 500 or fewer employees and all public employers must provide paid sick leave requiring 80 hours of paid leave to full-time employees, and the equivalent of the average hours worked during two weeks for part-time employees (capped per employee at $511/day and $5,110 total)

Further details on the new leave provisions are below. Employers should review their existing policies and related guidance and FAQs concerning leave related to COVID-19 and may want to prepare updated guidance and FAQs concerning these new types of emergency leave. The attorneys at Elrod Friedman are happy to assist with any advice or information concerning these new types of leave, including assistance in preparation of any additional guidance related to these new requirements.

Emergency FMLA Leave for Persons Who Cannot Work Because of Child Care Obligations

Employers should take care to note that the new emergency FMLA leave will apply to them even if they do not meet FMLA’s otherwise-applicable 50-employee threshold. The new emergency FMLA leave applies to employers with 500 or fewer employees, while all other forms of FMLA leave remain applicable only to employers with 50 or more employees.

Emergency FMLA leave under the Act is narrowly tailored to employees who have been employed for at least 30 days and who are unable to work (or telework) due to a need to care for children under 18 whose schools or place of child care are closed. Employers may exclude health care providers and emergency responders from eligibility for this emergency leave.

Eligible employees will receive emergency FMLA leave as follows:

  • Employees will receive an initial 10 days of unpaid leave; employees may elect to substitute other paid leave in their leave bank for this initial 10 days of otherwise unpaid leave.
  • After 10 days, employees will receive additional paid leave at a rate calculated at 2/3 of their regular rate of pay and based on the hours the employee would regularly work; this paid leave is capped at no more than $200/day and $10,000 total per employee.

While FMLA otherwise provides that employees must be restored to their previous position upon returning from leave, the emergency FMLA leave provisions include relief from this requirement for employers with 25 or fewer employees who have been forced to eliminate the employee’s position prior to the employee’s return from emergency leave. In this circumstance, the employer must demonstrate that it is not able to place the employee in a similar position, and must remain in contact with the employee for one year in the event the same or similar position becomes available.

Employers with 50 or fewer employers may also be able to seek an exemption from these leave requirements by demonstrating to the Department of Labor that providing this emergency leave would jeopardize the viability of their business. It is likely that DOL’s subsequent rule making will provide more clarity on this potential exemption.

New Emergency Paid Sick Leave Requirements

The Act also creates a new emergency paid sick leave requirement for all employers with 500 or fewer employees and all public employers.

The Act requires employers to provide paid sick leave, to be reimbursed by tax credits including payroll tax credits, as follows:

  • Employees are eligible for emergency paid sick leave if they are unable to work (or telework) and require leave because they are (1) subject to a quarantine or other isolation order of a health agency, (2) subject to advice of a health agency to self-quarantine, (3) experiencing symptoms of COVID-19 and seeking a medical diagnosis, (4) caring for an individual subject to required quarantine/isolation or directed to self-quarantine, (5) caring for a child whose school or child care provider is unavailable due to COVID-19 precautions, or (6) are experiencing any other substantially similar condition specified by Secretary of Health and Human Services.
  • Employers may exclude health care providers and emergency responders from eligibility for this emergency paid sick leave.
  • Full time employees will receive 80 hours of paid sick leave, and part-time employees will receive hours equivalent to the hours they regularly work in a two week period.
  • This sick leave is specific to the COVID-19 response, and does not carry over from year to year.
  • Sick leave is available for immediate use regardless of how long the employee has worked for the employer.
  • Employers must post a notice concerning the availability of this paid sick leave, in a form approved by regulation of the Department of Labor, which the Department is to provide by March 25, 2020.
  • Employers may not discipline, discharge, or take adverse employment action against an employee for exercising their right to use this emergency paid leave.
  • Paid sick time shall not exceed $511/day or $5,110 in the aggregate per employee.

Payroll Credits

The Act provides for employers to receive payroll tax credits for the extent of the emergency paid sick leave the Act requires them to pay under the Act.

Regulations Forthcoming

Federal regulations will be forthcoming that will further flesh out the requirements of the Act. We will examine those regulations once they become available and provide further updates.