The Families First Coronavirus Response Act

Apr 14, 2020   
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The Families First Coronavirus Response Act

On March 18, 2020, in response to the international pandemic caused by the novel Coronavirus, the President signed the “Families First Coronavirus Response Act” (“the Act”). The Act will go into effect on April 20, 2020 and will be the temporary law of the land through December 31, 2020. Summarily, the Act provides free Coronavirus (“COVID-19”) testing, increased funding for various government programs, a new entitlement to temporary emergency paid sick leave, and an expansion of the existing Family Medical Leave Act (“FMLA”). This blog focuses on the sick leave and FMLA provisions of the Act.

Temporary Emergency Paid Sick Leave

As it relates to temporary emergency paid sick leave, the Act only applies to businesses who employ more than 50, but less than 500 workers.[1] The Act states that these employers must provide two-weeks of paid sick leave to employees who are unable to work or telework as a result of any of the following:

  1. The employee is subject to a government quarantine or isolation order related to COVID-19;
  2. The employee has been medically advised to self-quarantine due to COVID-19;
  3. The employee has symptoms of COVID-19 and is seeking testing;
  4. The employee is caring for someone who has been quarantined due to COVID-19;
  5. The employee needs to care for a child whose school or daycare is closed or whose childcare provider is unavailable due to COVID-19; or
  6. The employee is experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services.

 

While the provisions of the Act inure to the benefit of full-time and part-time employees alike, its application impacts these individuals differently. For example, full time employees must be offered eighty (80) hours of paid sick leave, while part-time employees must be provided sick leave that is equivalent to their standard schedule over a two-week period. Leave will be paid at the employee’s regular rate of pay, with certain upper limit caps. More specifically, the most any full time employee may receive is $511 per day, which, over a 10 day period, equals a maximum benefit of $5,110. This upper limit corresponds with the upper limit tax credits that will be available to offset these costs. Further, sick leave pay is limited to two-thirds (or 66.6%) of an employee’s standard rate of pay if the employee qualifies for sick leave only under criteria 4, 5, or 6 above. Employees who qualify for the reduced pay are capped at $200 per day, which, over a 10 day period, equals a maximum benefit of $2,000. Of potential salience, the paid sick leave allotment is supplemental to existing sick leave policies already offered by employers.

Temporary Family Medical Leave Act Expansion

The FMLA has been in place since 1993 and, summarily, provides up to 12 weeks of unpaid leave only to employees who (a) work for a company of 50 or more employees and (b) have been employed at their company for at least 12 months (and worked at least 1250 hours during the prior 12 months). Standard FMLA leave can be used for the birth or adoption of a child, a serious health condition that makes an employee unable to perform the functions of their job, or to care for a close relative with a serious health condition. The Act now expands the reach of the FMLA.

Now, FMLA leave is available to employees who work for any employer of less than 500 employees and who have been employed for at least 30 days. That said, it’s worth mentioning that FMLA leave under the new framework is available for one purpose; that is, to allow employees to care for their children who are under the age of 18 and whose school or place of care has closed due to the COVID-19 public health emergency. Under the new (albeit, temporary) framework, a qualifying employee may take up to 12 weeks of leave. The first 10 days of leave are unpaid, but the employee may elect to use accrued paid sick leave and/or vacation during this otherwise unpaid period. After the initial 10 day period, an employee is entitled to receive two-thirds (or 66.6%) of their normal wages for the number of hours they would be regularly scheduled to work, up to a maximum of $200 per day ($10,000 in total). Along with the emergency paid sick leave provisions noted above, employers will be provided refundable tax credits against their employer portion of Social Security taxes for 100% of the qualified sick leave and family leave wages paid in accordance with the Act. In addition, an employee returning from leave is entitled to reinstatement to the same (or an equal position) they held prior to the temporary absence.

The attorneys at Fuerst Ittleman David & Joseph have extensive experience interpreting regulations and policies and advising both employers and employees on their impact. We will continue to monitor developments in this rapidly changing area of the law and guide our clients through this difficult and uncertain time. If you have any questions, an attorney can be reached by emailing us at contact@fidjlaw.com or by calling 305.350.5690. Stay healthy, safe, and sane.

[1] Many commentators expect that Congress will likely pass similar legislation pertaining to larger businesses employing over 500 workers, but for the time being, mounting social pressure is the only stimulus motiving such employers to act.