Perspectives

Families First Coronavirus Response Act

Families First Coronavirus Response Act

Late on Wednesday evening, President Trump signed the Families First Coronavirus Response Act which, among other things, addresses federal emergency FMLA and paid sick leave. Below are the highlights.

 

Emergency Family and Medical Leave Expansion Act

Effective Dates: April 2, 2020 – December 31, 2020

Covered Employers: Private employers with fewer than 500 employees and public agencies of any size (though employers with fewer than 50 employees are shielded from civil FMLA damages in an FMLA lawsuit, meaning reduced liability in terms of back pay or liquidated damages)

Eligible Employees: Employees who have been employed for at least 30 calendar days by the employer

Leave Entitlement: Up to 12 weeks

Reasons for Leave: Eligible employees may take up to 12 weeks of leave for a qualifying need related to a public health emergency. Such qualifying need is limited to circumstances in which the employee is unable to work or telework due to a need to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency.

Financial Benefit: The first 10 days of emergency FMLA leave is unpaid unless an employee elects to utilize any accrued vacation leave, personal leave, or medical or sick leave (including emergency paid sick leave, discussed below) concurrently.

After 10 days, employees are eligible for an amount that is not less than two-thirds of their regular rate of pay based on the number of hours the employee would otherwise be normally scheduled to work.

In the case of an employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked had the employee not taken leave, the employer should use: (1) a number equal to the average number of hours that the employee was scheduled per day over the immediately preceding 6-month period (including leave hours); or (2) if the employee did not work over the immediately preceding 6-month period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

Emergency FMLA leave pay need not exceed $200 per day or $10,000 in the aggregate.

Notice: Employees with a need for leave must provide as much notice as is practicable.

Reinstatement: Employees are eligible for reinstatement pursuant to default FMLA rules. An exception applies for employers with fewer than 25 employees if certain conditions are met (such as non-existence of previously held position due to economic conditions, etc.)

 

Emergency Paid Sick Leave Act

Effective Dates: April 2 – December 31, 2020.

Covered Employers: Private employers with fewer than 500 employees and public agencies of any size

Eligible Employees: All current employees, regardless of days of service.

Leave Entitlement: 2 weeks of paid leave, meaning 80 hours for full-time employees. Part-time employees receive a number of hours equal to that worked on average over a 2-week period.

Reasons for Leave:

• Employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19
• Employee has been advised by a health care provider to self-quarantine because of COVID-19
• Employee is caring for an individual ordered or advised to quarantine or isolate
• Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis
• Employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions
• Employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor

Financial Benefit: Employees should receive their regular rate of pay for leave related to their own care, diagnosis, quarantine, or isolation. When employees use paid sick leave to care for a family member or for school or child care closures, they are entitled to two-thirds their regular rate of pay.

Emergency sick leave pay may be limited to $511 per day and $5,110 in the aggregate where leave is taken for the employee’s own illness, diagnosis, quarantine, or isolation, and $200 per day and $2,000 in the aggregate for leave taken to care for others or for school or child care closures.

Carryover: Paid sick time under the new law does not carryover after December 31, 2020.

Existing Leave Policies: Paid sick leave under the new law is available to employees in addition to leave under an existing company policy. Employers may not require employees to first use accrued leave under existing company policy before using sick leave under the new law.

 

Tax Credits

The law provides for reimbursement for employers via payroll tax credits. Refundable tax credits equal to 100% of qualified family and sick leave wages an employer pays for each calendar quarter will be available. Tax credits against income taxes are also available to self-employed individuals (at a reduced, two-thirds rate when using emergency paid sick leave to care for family members or due to school or child care closures).

 

This blog article is intended for general informational purposes only and should not be construed as legal advice or opinion. Contact myHRcounsel with questions concerning specific facts and circumstances.

Posted on March 19, 2020