On Wednesday, March 18, 2020, the President signed into law the Families First Coronavirus Response Act (the Act). This new law, which goes into effect on April 2, 2020, provides additional, paid employment leave for employees affected by COVID-19, amends the Family & Medical Leave Act to provide coverage for absences related to COVID-19, distributes supplementary funding for emergency unemployment insurance, and provides extended free testing. This Act applies to employers with fewer than 500 employees.
This alert will focus on two key provisions, the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.
Emergency Paid Sick Leave Act
What is employer paid sick leave?
Full-time Employees who are absent due to their own exposure to COVID-19:
- Must be provided up to 80 hours of paid sick leave at the employee’s regular rate of pay.
- Paid sick leave in this circumstance is capped at $511 per day, and not more than $5,110 in total.
Full-time Employees who are absent due to their need to care for an individual subject to quarantine or a child whose school and/or childcare is closed due to COVID-19:
- Must be provided up to 80 hours of paid sick leave at two-thirds the employee’s regular rate of pay.
- Paid sick leave in this circumstance is capped at $200 per day, and not more than $2,000 in total.
- The same rules apply as to full-time employees in that part-time employees who are absent due to their own exposure receive their regular rate of pay, and part-time employees who are absent due to their need to care for any individual subject to quarantine or a child whose school and/or childcare is closed receive two-thirds their regular rate of pay.
- However, duration of paid sick leave is based on the number of hours the employee would otherwise be normally scheduled to work over a 2-week period.
What are qualifying reasons to receive employer paid sick leave?
All employees who fall into one of the following categories below shall be provided employer paid sick leave to the extent that the employee is unable to work because:
- the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
- the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- the employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
- the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19.
- the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
When does employer paid sick leave go into effect?
The Act allows employers until April 2, 2020 to fully comply. The paid sick leave shall be available for immediate use by the employee, regardless of how long the employee has been employed by an employer. Notably, the right to paid sick leave related to COVID-19 expires on December 31, 2020.
What else is required under employer paid sick leave?
- Each employer shall post a notice in a conspicuous place on the employer’s premises describing the requirements of employer paid sick leave. – The U.S. Department of Labor issued a model notice on March 25, 2020.
- The employer shall not discharge, discipline, or in any manner discriminate against an employee who takes leave under the Act.
- The employer may not require, as a condition of providing paid sick leave under this Act, that the employee search for or find a replacement employee to cover the hours during which the employee is using paid sick leave.
- The employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick leave provided by this Act.
Emergency Family and Medical Leave Expansion Act
Who qualifies under FMLA expansion?
- Employees who are unable to work due to a need to care for a child (under 18) whose school or childcare provider is closed or unavailable for reasons related to COVID-19.
What is an employee’s pay under FMLA expansion?
- An amount not less than two-thirds of an employee’s regular rate of pay based on the number of hours the employee would otherwise be normally scheduled to work.
- These employees will not be paid more than $200 per day, and not more than $10,000 in total.
How long does an employee need to be employed to qualify for FMLA expansion?
How long does an employee’s FMLA expansion last?
- Employees under this section are entitled to a total of 12 weeks of job-protected leave. The first 2 weeks are unpaid, but an employee would be able to use the employer paid sick leave during that time (see above).
Employees may choose to use previously available sick leave, vacation leave, or paid time off; however, employers cannot require employees to utilize such leave. Like the Emergency Paid Sick Leave, this expansion of the FMLA expires on December 31, 2020.
Contact the Labor & Employment Practice Group of Titus Hillis Reynolds Love if you have any questions.