On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“Act”) into law. There are two paid leave sections of the Act that private employers with fewer than 500 employees and public agencies must be aware of: (1) the Emergency Family and Medical Leave Expansion Act (the “EFMLEA”) and (2) the Emergency Paid Sick Leave Act (the “EPSLA”). Both provisions will take effect before April 2, 2020 and expire on December 31, 2020.
The Emergency Family and Medical Leave Expansion Act
The EFMLEA is an expansion of the Family and Medical Leave Act (“FMLA”) that requires private employers with less than 500 employees and public agencies that employ at least one employee to provide 12 weeks of job-protected leave for certain reasons related to COVID-19. Here are the essential takeaways:
Employee Eligibility. The EFMLEA covers employees who have been employed for at least 30 days and are unable to work (or telework) due to the need to care for minor children due to (1) a school or place of care being closed, or (2) the child care provider of such children being unavailable due to a COVID-19 emergency declared by a federal, state, or local authority.
Leave Entitlements. Eligible employees are entitled to 12 weeks of job-protected leave. The first 10 days of leave may be unpaid. However, an employee can substitute any accrued paid vacation, personal, medical, or sick leave. After the first 10 days, employers must provide employees with paid leave at a rate of two-thirds the employees’ regular rate at the number of hours employees normally would be scheduled to work. Paid leave cannot exceed $200 in one day or $10,000 total.
Job-Protected Leave and Job Restoration. Under the FMLA, an employee must be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. Employers are also required to continue group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave.
Under the EFMLEA, employees are generally entitled to the same job-protected leave. However, the Act makes a partial exception for employers with less than 25 employees if certain conditions are met:
- The employee takes leave under EFMLEA;
- The position held by the employee no longer exists due to economic conditions or changes in the employer’s operating conditions that affected employment and were caused by a COVID-19 emergency declared by federal, state, or local authorities;
- The employer makes reasonable efforts to restore affected employees to equivalent positions (based on pay, benefits, and employment conditions); and
- If no equivalent positions are available, employers must contact the affected employees if equivalent positions become available up to 1 year after the earlier of: (i) the employee’s need to take EFMLEA leave ends or (ii) 12 weeks after the employee’s EFMLEA leave begins.
Notice Requirements. Employees whose EFMLEA leave is foreseeable must provide their employers with as much notice as is practicable under the circumstances.
Exclusions. Employers with employees who are health care providers or emergency responders may elect to exclude such employees from the EFMLEA’s protections. Likewise, the EFMLEA gives the Secretary of Labor the authority to issue regulations that could exclude certain health care providers and emergency responders from the EFMLEA’s coverage and to exempt small businesses with less than 50 employees from the EFMLEA if its requirements jeopardize the economic viability of such businesses.
The Emergency Paid Sick Leave Act
The EPSLA requires private employers with fewer than 500 employees and public agencies that employ at least one employee to provide employees with up to 80 hours of paid sick leave. Unlike the EFMLEA, the EPSLA applies to all employees, regardless of how long they have been with their current employer. Below are the key points that employers need to know:
Reasons for Leave. The EPSLA requires covered employers to provide paid sick leave to employees who are unable to work due to:
- Being subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Being advised by a health care provider to self-quarantine due to COVID-19 related concerns;
- Experiencing COVID-19 symptoms and seeking a diagnosis;
- Caring for an individual subject to a federal, state, or local COVID-19 quarantine or isolation order, or an individual that has been advised to self-quarantine by a health care provider due to COVID-19 related concerns;
- Caring for their own child because the child’s school or place of care closed, or their childcare provider being unavailable, due to COVID-19 concerns; and
- Experiencing any substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Leave Entitlements. The EPSLA provides up to 80 hours of paid sick leave for full-time employees. Part-time employees are entitled to paid sick leave for the average number of hours they work over a 2-week period. For employees who have not begun working, the employer must pay them sick leave based upon the number of hours that they would have been scheduled to work.
Required Compensation. Under the EPSLA, an employee whose leave falls into categories (1)-(3) above is to be compensated at the employee’s regular rate of pay up to $511 per day or $5,110 total. Employees eligible for leave under categories (4)-(6) are to be compensated at a rate that is 2/3 of their regular rate of pay up to $200 per day or $2,000 total.
Relationship to Other Paid Leave Provided by Employers. Employers cannot require employees to use other types of employer-provided paid leave before using EPSLA leave.
Exclusions. Similar to the EFMLEA, the EPSLA allows employers to elect to exclude employees who are health care providers and emergency responders from its coverage. Moreover, the EPSLA allows the Secretary of Labor to issue regulations to exclude certain health providers and emergency responders from coverage under the EPSLA and to exempt small businesses with less than 50 employees from the EPSLA when compliance would jeopardize the economic viability of the business.
Other Important Provisions. The EPSLA also contains: (1) an express provision that employers are not required to pay employees unused EPSLA upon separation of employment; (2) a notice-posting requirement, which is scheduled to be available by March 25th; and (3) a prohibition against discrimination and retaliation against employees who utilize EPSLA.
The Secretary of Labor is currently scheduled to release guidelines to help employers calculate paid sick leave under both the EFMLEA and EPSLA by April 2, 2020.
Importantly, the Act also affords private employers with tax credits for providing paid leave under EFMLEA and EPSLA. All EFMLEA and EPSLA paid leave can be credited (up to the permitted thresholds) against the employer’s portion of certain federal payroll taxes.
If you have any questions on this topic or need assistance navigating these changes, please contact our Labor & Employment Law Practice Group. We encourage you to subscribe to our Labor & Employment E-Briefs to get the latest HR news, tips, and updates.
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