By Mary-Ellen H. Allen
President Trump signed the Families First Coronavirus Response Act into law on March 18, 2020. This initial coronavirus relief bill contains two provisions that provide paid leave to employees forced to miss work because of the COVID-19 outbreak: an emergency expansion of the Family Medical Leave Act (FMLA) and a new federal paid sick leave law. These provisions will be effective from April 2, 2020 through December 31, 2020.
Which employers are subject to the Emergency Family Medical Leave Act?
Private-sector employers with fewer than 500 employees, and governmental employers, are subject to this expanded provision. Covered employers must provide up to 12 weeks of job-protected FMLA leave for “a qualifying need related to a public health emergency” to employees who have been on the payroll for 30 calendar days. There is no 12 month minimum working period, nor minimum threshold of hours worked, as is required for other types of FMLA-eligible leave.
What is a “qualifying need”?
The term “qualifying need related to a public health emergency,” means the employee is unable to work (or telework) due to a need to care for the employee’s son or daughter (under 18 years of age) if the school or place of care has been closed, or the child care provider of the child is unavailable, due to a public health emergency.
Is the covered employer required to pay the employee on leave?
The first 10 days of the emergency FMLA leave can be unpaid. An employee can opt to use accrued vacation, personal, or sick leave during this time, but an employer may not require an employee to do so.
Employers must pay employees for the remaining 10 weeks of FMLA leave. In general, the employer must pay two-thirds of the employee’s regular rate, for the number of hours the employee would otherwise be scheduled to work. The required pay for this leave is capped at $200 per day and $10,000 in the aggregate.
Is the employer required to hold the employee’s position?
Yes, the employer must restore the employee to his or her prior (or equivalent) position upon expiration of the need for leave. There is an exception to this requirement for employers with fewer than 25 employees if the employer meets certain requirements and conditions.
Are there any other exceptions to the emergency FMLA leave?
The Secretary of Labor may exclude health care providers and emergency responders from the definition of employees allowed to take such leave. The Secretary of Labor also may exempt businesses with fewer than 50 employees if the required leave would jeopardize the businesses’ viability.
Who is entitled to emergency paid sick leave?
Employers with fewer than 500 employees, and government employers are required to provide paid sick time to an employee who is unable to work (or telework) if the employee is:
- subject to a federal, state, or local COVID-19 quarantine or isolation order;
- advised by a health care provider to quarantine due to COVID-19 concerns;
- experiencing symptoms of COVID-19 and seeking medical diagnosis;
- caring for an individual subject to a quarantine order;
- caring for a child if the school or child care provider is closed due to COVID-19; or
- is experiencing a substantially similar condition specified by the Secretary of Health and Human Services
As with emergency FMLA leave, an employer may exclude employees who are health care providers or an emergency responders. Unlike the emergency FMLA requirements, an employee is immediately eligible for this leave (there is no 30-day-on-payroll requirement).
How much paid sick leave must the covered employer provide?
Full-time employees are entitled to 80 hours of paid sick time. Part-time workers are entitled to payment for the typical number of hours they are scheduled to work in a two-week period.
The paid leave is capped at $511 per day ($5,110 in the aggregate) where leave is taken for reasons (1), (2), and (3) listed above (employee caring for self); and $200 per day ($2,000 in the aggregate) where leave is taken for reasons (4), (5), or (6) (employee caring for another).
Can employer required a covered employee to use other forms of paid time off first?
No, an employer may not require an employee to use other paid leave before the employee uses this emergency paid sick time.
Is there a tax credit for employers?
Yes, the law includes tax credit for payments made under the emergency FMLA expansion and the emergency sick leave, including for self-employed individuals.
This Q&A is for educational purposes and is not legal advice. To obtain legal advice about the Families First Coronavirus Response Act, contact Mary-Ellen H. Allen at Lamb McErlane PC: firstname.lastname@example.org or 610-430-8000. www.lambmcerlane.com.
Mary-Ellen is a past President of the Chester County Bar Association. She is a partner at Lamb McErlane and co-chair of the firm’s Employment Law Department. She concentrates her practice in employment law and commercial litigation.