On March 18, 2020, President Trump signed the Families First Coronavirus Response Act. The new law requires to provide paid leave under the Emergency Family and Medical Leave Expansion Act (EFMLA) and the Emergency Paid Sick Leave Act. The law takes effect on April 2, 2020 and expires on December 31, 2020.
Emergency Family and Medical Leave Expansion Act
Which private employers are covered by the EFMLA?
All employers except with 500 or fewer employees. (The Secretary of Labor is, however, authorized to exempt an employer with fewer than 50 employees if providing the required leave would jeopardize the viability of their business.)
Which employees are covered?
All employees who have worked for the employer at least 30 days before starting leave. (Employers can exclude employees who are health-care providers or emergency responders.)
What does the EFMLA require?
The law expands the Family and Medical Leave Act (FMLA) to require up to 12 weeks of paid time off for an employee unable to work or telework to care for the employee’s child under the age of 18 if (a) the child’s school or place of care has been closed or (b) the care provider is unavailable because of a public health emergency with respect to the Coronavirus declared by a Federal, State, or local authority.
How is the amount of pay an employee receives calculated?
The first ten days of leave is unpaid, although the employee can substitute accrued leave and the federal Emergency Paid Sick Leave discussed later. After the initial ten days, the employee is entitled to 2/3 of the employee’s regular rate for the employee’s normally scheduled hours. Payment, though, is capped at $200 per day and $10,000 total.
If an employee’s schedule varies, the employer must average the hours worked over the six-month period ending on the date the employee would have taken leave. If the employee has not yet worked for the employer for six months, the employer must use “the reasonable expectation of the employee at the time of hiring of the average number of hours per day the employee would normally be scheduled to work.”
Does an employer have to restore the employee to his or her position when leave ends?
Yes, with one exception. An employer with fewer than 25 employees does not have to return an employee to work if the following conditions are met:
- the employee takes EFMLA leave;
- the position held by the employee does not exist due to economic conditions or other changes in operating conditions of the employer that (a) affect employment; and (b) are caused by a public health emergency during the period of leave;
- the employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment; and
- if reasonable efforts to restore the employee fail, the employer must make reasonable efforts over a period of time called the “contact period” to contact the employee if an equivalent position becomes available. The “contact period” is the one-year period beginning on the earlier of (a) on which the qualifying need related to a public health emergency concludes or (b) the date that is 12 weeks after the date on which the employee’s leave commences.
Emergency Paid Sick Leave Act
Which private employers are covered?
Like the EFMLA, all private employers with 500 or fewer employees are covered, and the Secretary of Labor can exempt an employer with fewer than 50 employees if providing the required leave would jeopardize the viability of their business.
Which employees are covered?
Every employee immediately upon hire. (Employers can exclude employees who are health-care providers or emergency responders.)
What absences are covered?
Paid time off is required to the extent an employee is unable to work or telework needing leave because:
1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
2. The employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
3. The employee is experiencing COVID-19 symptoms and seeking medical diagnosis;
4. The employee is caring for an individual subject to an order described in paragraph 1 or has been advised as described in paragraph 2 (note – care for any individual – not just family members);
5. The employee is caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to COVID-19 precautions; or
6. 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.
How much paid leave does an employee receive?
Full-time employees are entitled to 80 hours of paid sick leave. Part-time employees are entitled to the number of hours that such employee works, on average, over a two-week period.
If an employee’s schedule varies, such that an employer cannot determine with certainty the number of hours the employee would have been normally scheduled to work, the employer must average the hours worked over the six-month period ending on the date the employee would have taken leave. If the employee has not yet worked for the employer for six months, the employer must use “the reasonable expectation of the employee at the time of hiring of the average number of hours per day the employee would normally be scheduled to work.”
What rate do we use to calculate paid leave?
Employees taking time off for reasons 1, 2, and 3 above (self-care) receive their regular rate per day. Employees taking time off for reasons 4, 5, and 6 above (care for others) receive two-thirds their regular rate.
Is there a cap on the amount of pay?
Yes. Paid sick leave for reasons 1, 2, and 3 is capped at $511 per day and $5,110 in the aggregate. Paid sick leave for reasons 4, 5, and 6 is capped at $200 per day and $2,000 in the aggregate.
Can we require notice from employees?
Yes. After the first day of paid sick leave, an employer can require the employee to follow reasonable notice procedures in order to continue receiving paid sick time