What Employers Need to Know About the Families First Coronavirus Response Act – An Introduction by Attorney Dorothy Green

As you may be aware, on Wednesday, March 18, Congress passed HR 6201, the Emergency Families First Coronavirus Response Act. The President immediately signed the bill into law. The bill includes, among other items, major changes to paid leave policies for most public and private employers. The Act takes effect on April 2, 2020 (15 days after enactment on March 18, 2020) and will sunset on December 31, 2020. The Act includes provisions affecting paid leave for employees.

Emergency Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act (“EFMLA”) amends the Family and Medical Leave Act.

Coverage:    Employers with 500 or fewer employees will be required to provide 80 hours or 2 weeks fully paid leave to their fulltime employees. Employees who have worked for at least 30 calendar days for the employer will be eligible. The leave covers employees who are not able to work (including remotely) because the employee must care for their child under 18 years of age due to school closing or unavailable childcare due to a public health emergency.

Amount of Leave: Leave is available for up to 12 weeks. The first ten days of leave are not required to be paid. At the employee’s election, any accrued leave can be used to cover the unpaid period.

Employers are also generally required by the Act to provide an additional 10 weeks of  leave paid at a minimum of two-thirds of the employee’s regular pay. Such amount is not to exceed $200 per day and $10,000 overall.

Job Restoration: The EFMLA provides for job reinstatement except for employers with less than 25 employees if (1) the employee’s position no longer exists due to economic conditions caused by the public health emergency, (2) the employer makes reasonable efforts to restore the employee to an equivalent position and (3)if reasonable efforts fail, the employer must continue to contact the employee for one year.

Future Regulations: The Secretary of Labor has authority to issue regulations to exclude health care providers and emergency responders from the definition of eligible employees.  The Department also has authority to exempt small businesses with less than 50 employees if these requirements would endanger the ability of the business to continue.

Emergency Paid Sick Leave Act

Prior to the Emergency Paid Sick Leave Act (“EPSLA”), there have been no federal requirements to provide paid sick leave. There are no Florida requirements to provide paid sick leave.

Coverage: The EPSLA applies to private employers with 500 or fewer employees as well as public employers than employ one or more employees. Leave under these provisions take effect on April 1, 2020 (15 days after the President signed the bill on March 18, 2020). It will sunset on December 31, 2020. Leave under the EPSLA is available for immediate use. There is no requirement that an employee be employed for any specific length of time.

Amount of Leave and Pay: Employers must provide 80 hours of fully paid sick leave to fulltime employees above and beyond any other paid leave plan the employer may have.  Part-time employees must be paid on a pro rata basis.

Employees are eligible if (1) they are subject to a federal, state or local quarantine or isolation order related to coronavirus, (2) they have been advised by a health care provider to self-quarantine or (3) they are experiencing coronavirus symptoms. Employers must pay such employees their full wages or salary. Such pay not to exceed $511 a day or $5,110 total.

Employees are also eligible for an additional 10 weeks of leave and to be paid two-thirds of their wages if (1) the employee is caring for an individual who is subject to quarantine or advice of a health care provider,(2) the employee is caring for his/her child due to school closing or child care closing due to coronavirus or (3) the employee is experiencing a condition similar to coronavirus specified by the Secretary of Health and Human Services. Pay in theses circumstances is not to exceed $200 per day and $2000 total.

Retaliation: The EPSLA includes a prohibition against retaliation or discrimination against an employee who takes leave allowed under the EPSLA.

Failure to Pay: Failure  to pay the required sick leave will be treated similar to minimum wage violations under the Fair Labor Standards Act.

Future Regulations: The Secretary of Labor has authority to issue regulations as discussed earlier.

Tax Credits for Paid Sick and Paid Family and Medical Leave

The legislation provides for 100% refundable tax credit to private employers with less than 500 employees who are required to pay COVID-19 related paid leave discussed above. The IRS will administer the tax credits which will sunset on December 31, 2020.

Suggested Action: While it is anticipated that the regulations clarifying the legislation will be issued by the Secretary of Labor in about 15 days, all employers should review their current paid time off policies and procedures and plan on how they will implement the EFMLA and EPSLA in their workplace.

If you need assistance or have questions, please contact your firm attorney or Dorothy Green at dgreen@lathamluna.com or 407 481-5810.