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Families First Coronavirus Response Act – What We Currently Know

UPDATED - MARCH 19, 2020

The President signed the Families First Coronavirus Response Act on the evening of March 18, 2020. The Act will take effect on April 2, 2020.

More information can be found on our website

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ORIGINAL COMMUNICATION

On March 14, 2020 the House of Representatives passed sweeping legislation known as the Families First Coronavirus Response Act to address the COVID-19 (coronavirus) outbreak. The proposed legislation would provide for an expansion of the federal Family and Medical Leave Act (FMLA), as well as include provisions for employer-mandated paid sick leave.

It’s important to note this is not final legislation. Although the bill passed in the House (and was subsequently updated again by the House on March 16, 2020) it must still be approved by the Senate and ultimately sent to President Trump for his signature. It’s highly likely that the final bill, if passed, will look different than it stands today. That said, here’s a summary of what was passed by the House of Representatives.

What are the provisions of the Bill?

The bill (as written by the House) provides for two separate components: Emergency Family and Medical Leave and Emergency Paid Sick Leave. Each are summarized below.

Emergency Family and Medical Leave Act would provide eligible employees up to 12 weeks of job-protected leave for “a qualifying need related to a public health emergency.”

What employers are covered?

Private employers with less than 500 employees and most public employers.

Note: Some small businesses (defined as those with fewer than 50 employees) may be exempt from providing Emergency Family and Medical Leave if the required leave would jeopardize the viability of the business.

Who is an eligible employee? Eligible employees are those who have been on the employer’s payroll for at least 30 calendar days. This includes both full-time and part-time employees.

Note: Employers may exclude health care providers and emergency responders from this emergency leave entitlement.

What is a Qualifying Need?

A “qualifying need” is defined as a circumstance where an employee is unable to work (either at the employer’s place of business or remotely) due to a need to care for a minor child if the child’s school or place of childcare has been closed or is unavailable due to a public health emergency.

Is Emergency Family and Medical Leave Paid or Unpaid? As written, the first 10 days of Emergency Family and Medical Leave can be unpaid, although an employee may elect to substitute available paid time off (e.g., vacation, personal or sick time), however, an employer may not mandate the use of such time.

Following the first 10 days of leave, Emergency Family and Medical Leave must be paid by the employer, generally at two-thirds of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work, up to a maximum of $200 per day/$10,000 total leave payments.

Must an employee be returned to their same position following leave? Generally, yes. Emergency Family and Medical Leave is a job-protected leave. However, there is an exception to the job restoration requirement for employers with less than 25 employees, if the employee’s position no longer exists following leave due to operational changes caused by a public health emergency (e.g., a dramatic downturn in business caused by the COVID-19 pandemic), subject to certain conditions.

When is this expected to take effect and is it a permanent amendment to the federal Family and Medical Leave Act? The bill would take effect 15 days after enactment, and sunset on December 31, 2020.

Emergency Paid Sick Leave Act requires covered employers to provide paid sick time to an employee who is unable to work (either at the employer’s place of business or remotely) 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 because of COVID-19; (3) the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; (4) the employee is caring for an individual subject or advised to quarantine or be in isolation; (5) the employee is caring for a son or daughter whose school or place of care is closed, or the child care provider is unavailable, due to COVID-19 precautions; or (6) the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

What employers and employees are covered? The requirements for employer coverage for Emergency Paid Sick Leave are the same as the provisions for Emergency Family and Medical Leave Act, including the same exceptions for health care providers and emergency responders, as well as the small business employer exemption.

Unlike the Emergency Family and Medical Leave provision, however, all employees would be eligible for Emergency Paid Sick Leave immediately; there is no requirement to be on the employer’s payroll for at least 30 days.

What benefit is provided under Emergency Paid Sick Leave?

In general, an employee would be entitled to up to two weeks (80 hours) of paid sick time (pro-rated based on the employee’s regular work hours).

The bill limits an employer’s requirement of paid leave to $511 per day ($5,110 in the aggregate) where leave is taken for reasons (1), (2), and (3) noted above (generally, an employee’s own illness or quarantine); and $200 per day ($2,000 in the aggregate) where leave is taken for reasons (4), (5), or (6) noted above (care for others or school closures).

Employers are prohibited from retaliating against any employee who takes leave under the law and indicates that the failure to pay required sick leave will be treated as a failure to pay minimum wages in violation of the Fair Labor Standards Act.

Note: the bill is now silent as to whether any emergency paid sick leave voluntarily provided by an employer before the effective date of the law may count towards satisfaction of any federal employer mandate.

How will these paid leave benefits be paid for? As written, covered employers would be responsible for the applicable employee payments (for Emergency Family and Medical Leave and/or Emergency Paid Sick Leave) and would be eligible for a “refund” through a tax credit. Note that these credits are only available to those employers that are required to offer these benefits under the new law, and these new credits are not generally extended to employers not subject to the new mandates under the bill.

What’s Next? As previously noted, the information provided in this document is based on the current legislation as passed by the House of Representatives and will next go the Senate, before potentially being signed into law.

Additionally states may pass additional legislation providing relief, as well.

HR Works will continue to monitor and provideupdates as they become available.

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HR Works, Inc., headquartered at 200 WillowBrook Office Park in Fairport (Rochester), New York, with an office in East Syracuse, is a human resource management outsourcing and consulting firm serving clients throughout the United States. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.