By Kirsten Mooney and Rob Gilmore

The Families First Coronavirus Response Act, signed into law March 18, 2020, provides those “covered” employees with paid leave in certain circumstances. There are two main provisions of the Act: Emergency Paid Sick Leave and an expansion of the Family Medical Leave Act.

Below is a summary of the pertinent provisions.

Emergency Paid Leave

Who Is a Covered Employer?

  • Companies with fewer than 500 employees;
  • Federal, state and local government; and
  • Companies with a multiemployer collective agreement and who pay into a multiemployer plan

There may be an exception for small businesses with less than 50 employees upon a showing of good cause, if compliance would jeopardize business. It is within the Secretary of Labor’s discretion to grant this exemption.

Employers may elect to exclude healthcare providers or emergency responders from eligibility for paid leave. However, the final version of the Act doesn’t define the terms “healthcare provider” and/or “emergency responder.”

Who Is a Covered Employee?

An employee must meet one of the following criteria to receive Emergency Paid Leave:

  • Be subject to a federal, state, local quarantine/isolation order;
  • Be advised by a healthcare provider to self-quarantine;
  • Be experiencing symptoms of coronavirus and seeking a medical diagnosis;
  • Be caring for a person subject to a quarantine/isolation order or advised to self-quarantine;
  • Be caring for a son or daughter whose school or place of childcare is closed; or
  • Be experiencing any other substantially similar condition, specified by the Secretaries of Health and Human Services, Labor and Treasury

All employees, regardless of length of employment, are eligible for the leave.

Rate of Pay?

The rate of pay depends on the employee’s reason for taking leave.

To self-quarantine, seek a diagnosis or preventative care, or receive treatment for COVID-19:

  1. Eligible full-time employees are entitled to 80 hours of paid time at their regular rate of pay, up to $511.00 per day and $5,110.00 in the aggregate.
  2. Eligible part-time employees are entitled to the same fully paid time off ($511.00 per day, $5,110.00 in the aggregate) for the number of hours equal to the average number of hours the employee works in a two-week period.

To care for a family member who is sick or to care for a child whose school or daycare has been closed due to COVID-19 (the fourth and fifth bullet points above):

  1. Eligible full-time employees are entitled to 80 hours of paid time off at 2/3 of their regular rate of pay, up to $200.00 per day and $2,000.00 in the aggregate.

Employer With Existing Leave Policies

An employee is still entitled to all paid leave under the employer’s existing policies. However, an employer may not require that the employee first take leave under such existing leave policies (e.g. vacation, sick and/or PTO time) prior to receiving the emergency paid leave under the Act.

Nothing prohibits employers from changing or amending their leave programs after the law goes into effect.

Is Notice to Employees Required?

Yes. The Department of Labor released a model notice on March 25, 2020, which can be found here. In addition, while unclear at this time, it is likely that employers will have an obligation to provide this notice to employees who are not physically in the workplace due to COVID-19 restrictions.

Emergency Expansion of Family Medical Leave Act

 

Who Is a Covered Employer?

  • Companies with fewer than 500 employees;
  • Federal, state and local government; and
  • Companies with a multiemployer collective agreement and who pay into a multiemployer plan

There may be an exception for small businesses with less than 50 employees upon a showing of good cause, if compliance would jeopardize business. It is within the Secretary of Labor’s discretion to grant this exemption.

Employers may elect to exclude healthcare providers or emergency responders from eligibility for paid leave. However, the final version of the Act doesn’t define the terms “healthcare provider” and/or “emergency responder.”

Who Is a Covered Employee?

Employees who have been employed by an employer for at least 30 calendar days and who are unable to work or telework because the employee needs to care for a child under 18 years of age if the child’s school or place of care has been closed or is unavailable due to COVID-19 restrictions.

Rate of Pay?

The first 10 days of the leave is unpaid. Following this 10-day period, the employer shall provide paid leave for each remaining day the employee takes, up to a maximum of 12 weeks of total leave (paid and unpaid), at a rate of 2/3 of the employee’s regular rate of pay, multiplied by the number of hours the employee would normally be scheduled to work. In the event that the employee’s schedule varies from week to week, such that the employer cannot determine the number of hours the employee would have worked, the employer should use the average number of hours that the employee was scheduled per day over the six-month period, ending with the date the employee begins the paid leave.

This paid leave is capped at $200.00 per day, and $10,000.00 in the aggregate.

Can Employee Run Paid Leave Concurrently?

Yes. If the employee is eligible for paid leave under the Emergency Paid Leave provisions discussed above, the employee may use the emergency paid leave during the first 10 days of unpaid leave.

Or, if the employee is ineligible under the Emergency Paid Leave provisions, the employee may elect to use any accrued personal or sick leave during the first 10 days of unpaid leave.

Employer Tax Credit

Because employers are expected to front the foregoing payments, the Act provides some assistance to employers to help with the resulting financial burdens. Each quarter, employers who are subject to the requirement are entitled to a fully refundable tax credit equal to 100 percent of the qualified paid sick leave wages and the employer’s contribution to employee health insurance premiums paid by the employer.

The tax credit also applies to non-profit companies and self-employers.

Effective Date

The provisions will go into effect on April 1, 2020 and will expire on December 31, 2020.

For more information, please contact Rob Gilmore at rsg@kjk.com or 216.736.7240 or Kirsten Bordis Mooney at kbm@kjk.com or 216.736.7239 or one of our Labor & Employment professionals.

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