President Trump signed into law Wednesday, March 18, 2020, the Families First Coronavirus Response Act, which passed in a 90-8 vote in the Senate.
The final version of the legislation contains important changes from the iteration of the bill discussed in our earlier published blog including eligible leave reasons, leave compensation caps, and voluntary exclusions for health care workers and emergency responders.
The emergency paid sick leave and public health emergency leave provided under the law are available to employees of private employers with fewer than 500 employees. The legislation also provides leave benefits to employees of certain public agencies and public entities regardless of size. Private employers with 500 or more employees are not covered by the law.
The costs to employers of providing the paid leave mandated by the new law will be offset by the government in the form of tax credits.
Emergency Paid Sick Leave
The law requires covered employers to provide full-time employees with 80 hours of emergency paid sick leave for an enumerated list of reasons related to COVID-19. Emergency paid sick leave is also available to part-time employees in a pro-rated amount based on hours worked. There is no length of service requirement to be eligible for emergency paid sick leave.
An employee may use emergency paid sick leave when:
- the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- the employee has been advised by a health care provider to self-quarantine because of COVID-19;
- the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- the employee is caring for an individual who is subject to a quarantine or isolation order or has been advised by health care provider to self-quarantine;
- the employee is caring for a minor son or daughter whose school or place of care has been closed or the child’s care provider is unavailable due to COVID-19 precautions; or
- the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Note that the leave reasons do not require a care recipient to be a family member of the employee, as was required under a previous version of the bill. Instead, the care recipient can be any “individual.”
The rate at which an employee must be compensated for emergency paid sick leave depends on the reason for which the leave is taken. While an employee must be compensated at his or her regular rate of pay for leave taken for reasons “1,” “2”, and “3” above, an employer need only pay an employee two-thirds of that rate if the leave is for reason “4,” “5,” or “6” above. There is also a cap on emergency paid sick leave compensation in the amount of $511 per day ($5,110 aggregate) for leave taken for reasons “1,” “2” and “3” above, or $200 per day ($2,000 aggregate) for leave taken for reasons “4,” “5” and “6.”
Public Health Emergency Leave
The Families First Coronavirus Response Act also provides up to 12 weeks of public health emergency leave (pursuant to an FMLA expansion) for eligible employees who have worked for their employer for at least 30 calendar days. This public health emergency leave is available under the FMLA if an employee is unable to work or telework due to the need to care for a minor son or daughter if the child’s school or place of child care has been closed or the child care provider is unavailable due to a public health emergency.
The first 10 days of public health emergency leave are unpaid before the paid leave benefits kick in at a rate of two-thirds of the employee’s wages up to a maximum of $200 per day and $10,000 in the aggregate. However, an employee may elect to use available paid leave such as emergency paid sick leave or company-provided PTO during the unpaid portion of the public health emergency leave.
Voluntary Exclusions for Health Care Providers and Emergency Responders
The final version of the legislation allows employers to deny emergency paid sick leave and public health emergency leave and associated benefits to employees who are health care providers or emergency responders.
The Families First Coronavirus Response Act goes into effect within 15 days of the President’s signature, which leaves covered employers with limited time to prepare for the anticipated surge in COVID-19 related leave requests. Covered employers would be wise to review and make any necessary updates to their existing leave programs to conform with the requirements of the new law.
As the coronavirus pandemic continues to fast-track paid leave legislation across the country, stay up-to-date on COVID-19 developments by visiting our Coronavirus Update page and subscribing to ReedGroup’s blog.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.