FAMILIES FIRST CORONAVIRUS RESPONSE ACT
On March 18, 2020, President Donald J. Trump signed into law H.R. 6201, the “Families First Coronavirus Response Act” (“FFC Act”) which, among other things, temporarily expanded the Family Medical Leave Act of 1993 (“FMLA”) to include paid leave in certain scenarios, and further created emergency paid leave to certain employees who cannot work due to circumstances from the COVID-19 pandemic. The full text of the FFC Act can be found here: https://www.congress.gov/116/bills/hr6201/BILLS-116hr6201enr.pdf. The FFC Act will become effective April 2, 2020 and expire December 31, 2020.
EMERGENCY FMLA LEAVE (“EFMLA”)
EFMLA is a temporary expansion of FMLA job-protected leave that provides paid leave to a limited category of employees. Unlike the FMLA, which requires that employees are employed by their employer for 12 calendar months before they become eligible for FMLA’s protections, employees may be eligible for EFMLA after working for at least 30 calendar days. The law makes no distinction between full-time and part-time employees, and does not specify that the employee meet any hours of service requirement before becoming eligible.
Similarly, the EFMLA applies to a broader category of employers than FMLA. As the legislation currently stands, the EFMLA applies to employers with fewer than 500 employees. However, the EFMLA authorizes the Secretary of Labor to issue regulations to exclude certain health care providers and emergency responders from the definition of eligible employee under Section 110(a)(1)(A), and to exempt small businesses with fewer than 50 employees from the requirements of Section 102(a)(1)(F) when the imposition of that section’s requirements would jeopardize the viability of the business as a going concern. What those regulations will provide remains to be seen. The EFMLA further eliminates the FMLA’s requirement that covered employers employ 50 or more ‘employees within a 75-mile radius.
Unlike the FMLA’s leave entitlement based on, among other things, a serious health condition, the EFMLA applies only to those employees who are “unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” Notably, prior versions of the bill which were ultimately removed would have extended FMLA’s protections to health conditions related to the COVID-19 pandemic.
Under the EFMLA, an employee with a “qualified need” is eligible for up to twelve (12) weeks of job-protected leave, the first 10 days of which can be unpaid, and the remaining leave paid by the employer at an amount “not less than two-thirds of an employee’s regular rate of pay.” Importantly, EFMLA caps the paid benefit at $200 per day or $10,000 in the aggregate for any one employee. Moreover, employees are allowed to substitute accrued paid leave (sick or otherwise) for the first ten days which are to be unpaid.
The present law is silent as to how an employee requests EFMLA, but as this is an amendment to the FMLA, we recommend that employers adhere to the notice and recordkeeping requirements established under FMLA.
EMERGENCY PAID SICK LEAVE ACT (“EPSLA”)
The EPSLA provides that an employer shall provide to each employee paid sick time to the extent that the employee is unable to work (or telework) due to a need for 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 concerns related to COVID– 19;
(3) The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis;
(4) The employee is caring for an individual subject to a local quarantine or isolation order as described above, or has been advised to self-quarantine due to concerns related to COVID-19;
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter 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 Secretary of Labor
We currently interpret the “catch-all” language of subparagraph (6) to indicate Congress’s intent that the law be applied broadly to any employee who cannot work because of a condition related to or caused by the COVID-19 pandemic.
Full-time employees are entitled to 80 hours of paid sick time at the employee’s normal hourly rate, capped at $511 per day or $5,110 in the aggregate per employee, if used for reasons 1-3 above, in other words, leave for the employee’s own needs. Leave is paid at two-thirds the employee’s rate if used for reasons 4-6 above and capped at $200 per day up to $2,000 total. Part-time employees are paid “a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.” Unlike the EFMLA, paid sick leave is available to all employees, even if they have not yet worked for the employer for 30 days.
It is immaterial that an employer already provides a paid leave entitlement, or that its employees already have paid leave at their disposal for use prior to using EPSLA leave. The law suggests that this leave must be offered in addition to any already accrued paid leave, and specifically prohibits an employer from requiring an employee to exhaust any accrued sick leave before using EPSLA leave.
The EPSLA provides that eligibility for this leave ceases beginning with the employee’s next scheduled workshift immediately following the termination of the need for paid sick time. Furthermore, the EPSLA specifically provides that unused sick time does not carry over from one year to the next. There is no provision within EPSLA which would require the employer to pay out accrued, unused EPSLA time upon separation of employment, for any reason.
The EPSLA is silent as to the procedure for an employee to request EPSLA leave, and to the mechanics of an employer’s tracking of EPSLA leave. However, the EPSLA mandates that the Secretary of Labor must, no later than March 26, 2020, “make publicly available a model of a notice” that specifies an employer’s obligations under this law. An employer will be required to post the model poster or its equivalent within seven days of the posting of that model notice. We believe that the model notice will provide further guidance as to the procedures for employees to request EPSLA leave, as well as the employer’s recordkeeping obligations.
The attorneys at Margolis Edelstein are ready and available to answer any questions that you may have when responding to employment concerns arising from the COVID-19 pandemic and any specific questions or for general guidance about how this new law may impact your business. We welcome your further inquiries.