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
