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Author:  John D. Leidy

On March 18, 2020, President Trump signed the “Families First Coronavirus Response Act” as part of the effort to provide relief to workers effected by economic and health impacts of the coronavirus.  While the FMLA previously did not apply employers who had less than 50 employees, and only benefited employees who had worked for at least one year, the new law will extend FMLA coverage under certain circumstances to nearly all employees who have worked for at least 30 days for most any public or private employer in the U.S.  Key components of the Act as signed (which differs in several respects from what the House passed on Saturday, March 14)  are highlighted below.

WHO IS COVERED

The new paid FMLA and paid sick leave provisions apply only to private employers with fewer than 500 employees as well some public employers.  There are some different provisions for employers that have fewer than 50 employees, and some potential but limited “hardship” exceptions for employers who have fewer than 25 employees.  Both provisions allow for the exclusion of an employee who is a healthcare provider or emergency responder from these two requirements.

FMLA EXPANSION FOR CORONAVIRUS

The new Act amends the FMLA so that an employee who is unable to work (including tele-work) because they need to take leave to care for the employee’s child (under 18) if the child’s school or place of care has been closed, or the childcare provider is unavailable due to a “public health emergency”.  Employees who meet this test will now be eligible for FMLA and that leave must be paid.

PAID SICK LEAVE

Employers with fewer than 500 employees must immediately provide 80 hours of paid sick leave for full-time employees (or a prorated amount of hours over two weeks for any part-time employees) if:

1. The employee is subject to a federal, state or local quarantine or isolation order;
2. The employee has been advised by a healthcare provider to self-quarantine due to concerns stemming from COVID-19;
3. The employee experiences symptoms of COVID-19 and is seeking a medical diagnosis of their condition;
4. The employee is caring for an individual who is subject to a quarantine or isolation order or has been advised to self-quarantine;
5. The employee is caring for their child whose school or place of care has been closed, or the childcare provider is unavailable to COVID-19 precautions; or
6. The employee is experiencing any other substantially similar condition as described by the Secretary of Health and Human Services.

PAY REQUIREMENTS

The new FMLA provisions allow the employer to give the first 10 days of leave due to a school or daycare closure as unpaid; however, any additional absences beyond the first 10 days must be paid at 2/3 of the employee’s regular rate of pay.  (There is a $200 per day or $10,000 total cap.)  If the first 10 days are provided without pay an employee may elect to use any accrued paid leave they have available to them.  Additional days of paid sick leave are available with a cap of $511 per day (or $5110 total)  for the situations described in paragraphs 1, 2 or 3 above; there is a $200 per day ($2000 total) cap for leave taken pursuant to paragraphs 4, 5 or 6 above.

Note: An employee is entitled to use this paid sick leave before having to use any other paid sick leave the employee may have accrued.

SOURCE OF PAYMENT FOR SICK TIME/LEAVE

Employers must pay the cost of sick leave benefit, but will receive a tax credit for doing so.

JOB PROTECTION

Comparable to the existing FMLA provisions, the new Act provides job protection but has less stringent requirements and some exceptions.

NOTICE REQUIREMENTS

The Act requires employers to post a notice of these rights once such a form notification has been approved by the U.S. Department of Labor.

NO PAY IS REQUIRED FOR UNUSED SICK LEAVE

The paid sick leave provided under the Act does not carry forward from one year to the next and does not have to be compensated upon the employee’s termination.

EFFECTIVE DATE

The changes to the FMLA and mandated paid sick leave take effective “not later than 15 days” after the Bill’s enactment (i.e. no later than by April 2, 2020).  The Act expires unless extended, December 31, 2020.

ADDITIONAL QUESTIONS?

The team of Hornthal, Riley, Ellis & Maland L.L.P. is ready to assist you in protecting your family, business, and workforce during this unique and challenging time. Legal issues and guidance are continuing to evolve, and we encourage you to contact a member of our team for any additional guidance or assistance. Our offices are continuing to remain open on our usual schedule, Monday through Friday from 8:30 a.m. – 5:00 p.m.