Last week, Congress passed the Families First Coronavirus Response Act, an economic stimulus package aimed at addressing the impact of the COVID-19 outbreak. The law goes into effect on April 2, 2020 and will expire at the end of 2020. The Act includes paid sick leave for employees impacted by COVID-19 and those serving as caregivers for individuals with COVID-19. The Act also contains several provisions to increase funding for benefit programs such WIC and SNAP and unemployment compensation. Here, we focus on the provisions for employees seeking to take leave related to coronavirus. If you have questions about how the new laws affects your job or ability to take leave, please contact us today.
Emergency Family and Medical Leave Expansion Act
The Act amends and expands Family Medical Leave Act (FMLA) on a temporary basis. It changes the current employee threshold for FMLA to require all employers with fewer than 500 employees to provide family and medical leave. It also lowers the eligibility requirement for employees, so that an employee who has worked for the employer for at least 30 days prior to the needed leave may be eligible to receive paid family and medical leave. As a result, thousands of employees who were not previously eligible for FMLA may be entitled to job-protected leave for a COVID-19-related reason.
The Act allows the Secretary of Labor to act to exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business. It allows employers of healthcare providers or emergency responders the flexibility to offer emergency FMLA leave at their discretion. (Employees who work in health care and emergency responders should contact us to discuss their rights under existing laws that protect against discrimination or retaliation for medical conditions or family responsibilities).
The Act allows for an employee to take job-protected leave for child-care reasons. An eligible employee may take up to 12 weeks of job-protected leave so that the employee, who is unable to work or telework, to care for his or her child (under 18 years of age) if the child’s school or place of care is closed or a caregiver is otherwise unavailable due to this public health crisis.
The first 10 days of Emergency FMLA leave may be unpaid. During this 10-day period, an employee may elect to substitute any accrued paid leave (like vacation or sick leave) to cover some or all of the 10-day unpaid period. After the 10-day period, the employer must pay full-time employees at two-thirds of the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. The Act limits this pay to $200 per day and $10,000 in the aggregate per employee.
Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation of the average number of hours the employee would normally be scheduled to work.
Employers with 25 or more employees will have the same obligation as under traditional FMLA to return any employee who has taken Emergency FMLA to the same or equivalent position upon the return to work. Employers with fewer than 25 employees are excluded from this requirement if the employee’s position no longer exists following the Emergency FMLA leave due to an economic downtown or other circumstances that arose during the period of Emergency FMLA. The employer must still make a reasonable attempt to return the employee to an equivalent position and must continue to make such efforts to return the employee to work for up to a year following the employee’s leave.
Emergency Paid Sick Leave Act
The new law allows an eligible employee to take paid sick leave because the employee is:
(1) subject to a federal, state or local quarantine or isolation order related to COVID-19;
(2) advised by a health care provider to self-quarantine due to COVID-19 concerns;
(3) experiencing COVID-19 symptoms and seeking medical diagnosis;
(4) caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
(5) caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
(6) experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
This provision requires employers with fewer than 500 employees to provide full-time employees (regardless of the employee’s duration of employment prior to leave) with 80 hours of paid sick leave at the employee’s regular rate, or two-thirds the employee’s regular rate to care for qualifying reasons 4, 5, or 6 listed above. The law gives employers of healthcare providers or emergency responders the option of providing paid sick leave to their employees. Paid sick leave wages are limited to $511 per day up to $5,110 total per employee for their own use and to $200 per day up to $2,000 total to care for others and any other substantially similar condition.
Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking paid sick leave. Employees who have worked for less than six months prior to leave are entitled to the average number of hours the employee would normally be scheduled to work over a two-week period.
Employment laws are complex and, particularly in these unprecedented and difficult times, constantly changing. Congress continues to consider legislation related to COVID-19 and employees. Please contact the lawyers at Correia & Puth if you have questions or believe you are experiencing issues with your employer and a need for leave. We will help you identify your rights and consider ways to improve your working conditions or remedy the discrimination you experienced.