Mar 19, 2020
by Neil Reichenberg
The Families First Coronavirus Response Act (H.R. 6201) takes effect on March 31, 2020. Its two primary employment provisions expand eligibility for Family and Medical Leave Act leave and make emergency paid sick leave available to some workers. These provisions will remain in effect until Dec. 31, 2020.
FMLA Eligibility Expanded
Under the coronavirus response law, all public sector employees and employees who work for private companies that employ fewer than 500 people qualify to request and use FMLA leave if they
- Have been employed by their current employer for at least 30 calendar days,
- Are unable to work remotely or report to their worksite, and
- Are caring for their child who is younger than 18 and whose school or place of care has closed or
- Cannot place their child with their childcare provider due to a public health emergency
The first 10 days of leave may be taken as unpaid leave, or the employee can substitute any accrued leave for the unpaid portion. Employers cannot require employees to use accrued leave.
Employers would need to provide paid leave for the subsequent 10 weeks of leave at a rate that is capped at $200/day and $10,000 in total.
Further, employers need to make reasonable efforts to restore employees who return from leave to their same or an equivalent position. If those efforts fail, the employer needs to make reasonable efforts to contact the employee if an equivalent position becomes available during the next year.
The Secretary of Labor has the authority to exclude certain health care providers and emergency responders from coverage. Additionally, private employers with fewer than 50 employees can request an exemption on the grounds that complying would jeopardize the viability of the business.
Emergency Paid Sick Leave
Under this provision, full-time employees are eligible to take up to 80 hours of paid leave for one of the following reasons:
- 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 has been advised to self-quarantine or is experiencing symptoms of 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 child-care provider of such son or daughter is unavailable, due to COVID–19 precautions.
- 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.
Part-time employees are eligible to take paid emergency sick leave for one of the above reasons, as well, but on a prorated basis.
All employees are eligible for paid emergency sick leave regardless of how long they have worked for their current employer. Pay during the emergency leave will be calculated based on an employee’s regular rate but is limited to $511/day and $5,110 total. Where the emergency sick time is for employees to be caregivers, it is based on 2/3 of the regular rate and limited to $200/day and $2,000 total.
The final version of the law no longer requires the sick leave to be in addition to existing paid sick leave. However, the law still provides that “[a]n 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 time under [the Act].”
Also, employers cannot require employees to find someone to cover their hours as a condition for taking paid sick time.
The law directs the Secretary of Labor to promulgate emergency temporary standards to protect health care workers under OSHA and expand which hospitals and other medical facilities are subject to such standards.
The Effect on Employers
The Department of Labor will provide a model notice for use by employers to advise employees of the emergency family and medical leave and emergency paid sick leave provisions. Employers will have to the model notice in a conspicuous place.
Private employers will receive a payroll tax credit to cover the wages they pay to employees who take qualified emergency leave under this law. Public sector employers will not receive a tax credit.
IPMA-HR wrote a letter (included as a PDF here) to the majority and minorities leaders of the House and Senate to ask for similar reimbursements to public sector employers. “State and local governments are on the front lines in responding to the public health crisis caused by coronavirus,: the letter states. “The new emergency family and medical leave and emergency sick leave must be paid by state and local employers who are already experiencing massive challenges.”
For additional information, please contact IPMA-HR Executive Director Neil Reichenberg at email@example.com.