The Families First Coronavirus Response Act (“Response Act”) contains provisions expanding relief for individuals and families affected by the Coronavirus Pandemic. Employers should take note of the following divisions of the Response Act:
Emergency Family and Medical Leave Expansion Act
Division C of the Response Act is the Emergency Family and Medical Leave Expansion Act (“Emergency FMLA Expansion Act”). This expands the provisions of the Family and Medical Leave Act to provide leave for an individual with a “qualifying need related to a public health emergency,” meaning that the employee is unable to work or telework due to a need for leave to care for his or her son or daughter under 18 years of age if the school or place of care for the child has been closed, or the child care provider is unavailable, due to an emergency with respect to COVID-19 declared by a Federal, State or local authority. To be eligible for such leave, the employee must have been employed for at least 30 calendar days by an employer with fewer than 500 employees. The Secretary of Labor has the authority to issue regulations to exclude certain health care providers and emergency responders from eligibility for such leave and to exempt small businesses with fewer than 50 employees from the requirements of the Emergency FMLA Expansion Act if the imposition of such requirements would jeopardize the viability of the business.
The first ten days of public health emergency leave may be unpaid, and the employee may elect to substitute accrued vacation leave, personal leave, or sick leave during such time. After ten days, the employer shall provide paid leave in an amount not less than two-thirds of the employee’s regular rate of pay not to exceed $200 per day and $10,000 in the aggregate. Employers with fewer than 25 employees do not need to restore an employee who takes public health emergency medical leave to his or her position if such position no longer exists due to economic conditions or changes in operating conditions caused by the public health emergency.
The Emergency FMLA Expansion Act takes effect not later than April 2, 2020 and expires on December 31, 2020.
Emergency Paid Sick Leave Act
Division E of the Response Act is the Emergency Paid Sick Leave Act. It applies to private entities or individuals who employ fewer than 500 employees and public entities that employ one or more employees. It requires an employer to provide each employee employed by the employer 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 who is subject to an order as described in number (1) or has been advised as described in number (2); (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; and (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 the Secretary of Labor. (Note: paid sick time under the uses described in numbers (1)-(3) above shall be at the employee’s regular rate of pay not to exceed $511 per day and $5,110 in the aggregate; paid sick time under the uses described in numbers (4)-(6) above shall be at two-thirds of the employee’s regular rate of pay not to exceed $200 per day and $2,000 in the aggregate.)
Not later than April 17, 2020, the Secretary of Labor is ordered to issue guidelines to assist employers in calculating the amount of paid sick time under the Emergency Paid Sick Leave Act.
The employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from coverage under the Emergency Paid Sick Leave Act.
Full-time employees are entitled to 80 hours of paid sick time, and part-time employees are entitled to the number of hours that such employee works, on average, over a 2-week period. Paid sick time under the Emergency Paid Sick Leave Act shall not carry over from one year to the next. An employer may not require an employee to find coverage for the hours the employee is using such paid sick time.
This paid sick time shall be made available to an employee regardless of how long the employee has been employed by the employer. In terms of the sequencing of paid sick time, an employee may first use this paid sick time; an employer may not require an employee to use other paid leave before using this paid sick time.
Employers must post a notice of this paid sick leave. The Secretary of Labor will issue a model notice not later than seven days after enactment of the Emergency Paid Sick Leave Act for this purpose.
Employers are prohibited from discharging, disciplining, or discriminating against any employee who takes leave in accordance with the Emergency Paid Sick Leave Act, has filed a complaint or instituted a proceeding under it, or has testified or intends to in any such proceeding.
An employer who violates the Emergency Paid Sick Leave Act shall be considered to have failed to pay minimum wages in violation of Section 6 the Fair Labor Standards Act and will be subject to the penalties set forth in Sections 16 and 17 of it. An employer who violates the termination provision shall be considered to have violated Section 15(a)(3) of the Fair Labor Standards Act and will be subject to the penalties in Sections 16 and 17.
The Emergency Paid Sick Leave Act shall not diminish rights or benefits to which an employee is otherwise entitled, nor shall it require reimbursement from an employer to an employee upon such employee’s termination, resignation, retirement, or other separation from employment for paid sick time under this Act which has not been used by such employee.
The Secretary of Labor has the authority to issue regulations excluding certain health care providers and emergency responders from coverage under this Act and to exempt small businesses with fewer than 50 employees from the paid sick time requirement if it would jeopardize the viability of the business.
The Emergency Paid Sick Leave Act takes effect not later than April 2, 2020 and expires on December 31, 2020.
What Does This Mean For You? Employers must be prepared to comply with the law beginning on April 2, 2020. This means that, as of April 2, 2020, employees may use paid sick time for qualifying leaves. Employers may not require their employees to use other types of paid leave time (vacation or PTO, for example), but the employees may choose to do so. Employers are also required to post government issued notices concerning the availability of paid sick leave, once that notice is issued by the Secretary of Labor on March 25, 2020.
If you have questions about this or any other employment law issues, please contact Jill M. Laskowitz at firstname.lastname@example.org or (717) 509-7261, S. Whitney Rahman at email@example.com or (717) 509-7237, or Grace C. Nguyen Bond at firstname.lastname@example.org or (717) 509-7226.
**This update is provided for informational purposes only and
should not be construed as legal advice or as creating an
attorney-client relationship where one does not already exist.**