On March 18, 2020, President Trump signed, specifically in response to the COVID-19 pandemic, the Families First Coronavirus Response Act. This Act consists of two parts. The first is paid sick leave, known as the Emergency Paid Sick Leave Act. The second form of leave is the expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act. The Family First Coronavirus Response Act is effective April 1, 2020 and impacts leaves taken from April 1, 2020 to December 31, 2020. The Act is applicable if an employer employs fewer than 500 full-time and part-time employees within the United States. Independent contractors are not counted towards this threshold eligibility requirement.

 

EMERGENCY PAID SICK LEAVE ACT

Under the Emergency Paid Sick Leave Act, employers are required to provide up to 80 hours of paid sick leave in select situations. When Paid Sick Leave applies and how it should be administered are discussed below.

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Who Qualifies

All employees of covered employers are eligible for this leave. There are no employment duration requirements, meaning employees are eligible regardless of how long the employee has been employed. Employees are likewise eligible regardless of whether they are full-time or part-time. As mentioned above, covered employers are those employing less than 500 employees.

Paid Sick Leave is a benefit that must be provided in addition to any other benefits an employee may be eligible for. Paid Sick Leave cannot diminish or replace other benefits. For example, if an employer maintains a paid time off policy, Paid Sick Leave would be a benefit in addition to those existing employer policies. An employer cannot require an employee to exhaust other benefits, like accrued paid time off, before using Paid Sick Leave.

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Qualifying Reasons

Employees who are unable to work or unable to work remotely because of six COVID-19 related reasons will be entitled to Paid Sick Leave. These reasons are:
 

1. The employee is subject to a government-mandated quarantine or isolation order

2. A health care provider has advised the employee to self-quarantine

3. The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis

4. An employee is caring for an individual under a government quarantine or health care provider self-quarantine order

5. The employee is caring for employee’s child if the child’s school or childcare facility is closed or the childcare provider is unavailable due to COVID–19 precautions

6. The employee is experiencing any other substantially similar condition subject to guidance by the Department of Labor

 

Employee Benefit

Employees who are unable to work or work remotely due to one of the reasons described above are entitled to up to 80 hours of sick pay for full-time employees. Part-time employees are entitled to pro-rated hours for a two-week period.

Employees will be paid their regular pay up to $511/day or $5,110.00 in the aggregate if the employee is unable to work because conditions (1), (2), or (3). Employees will be paid two-thirds of their regular rate of pay up to $200/day or $2,000.00 in the aggregate for absences related to conditions (4), (5), or (6).

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Additional Employee Protections

Additional protections exist within the Act to facilitate use of Paid Sick Leave. For example, an employer cannot require an employee to find a replacement before qualifying for or using Paid Sick Leave. The Act also includes an anti-retaliation provision that prohibits adverse employment actions, like demotion or termination, against someone who has taken Paid Sick Leave.

 

Employer Protections

The Department of Labor is expected to issue regulations enhancing and clarifying the small business exemption. Generally, this provision allows employers with less than 50 employees to be excluded from compliance if it would jeopardize the viability of the company. Employers are still permitted to require reasonable notice procedures for an employee to remain eligible for leave. Any Paid Sick Leave not used is forfeited and expires on December 31, 2020. Amounts paid to employees under this leave requirement will be subject to a tax credit.

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Enforcement

Employers who fail to comply with Paid Sick Leave will be subject to lost wages, liquidated damages equal to the amount of lost wages, and attorneys’ fees and costs. This noncompliance scheme mirrors that for noncompliance with minimum wage statutes, specifically the Fair Labor Standards Act. Employees may also bring causes of action for unlawful termination. Violating employers can also face fines up to $10,000 and criminal enforcement remedies.

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EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

Under the Emergency Family and Medical Leave Act, provisions of the Family Medical Leave Act are amended to provide greater employee protection. Amendments are applicable through December 31, 2020.

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Who Qualifies

Covered employers are those employing less than 500 employees. Employees who have a qualifying need due to COVID-19, as discussed further below, and have been employed for at least thirty days before leave is requested, are eligible for Emergency Family Medical Leave. Ordinarily, the Family Medical Leave Act applies to employers with more than 50 employees. However, under the amendment, employers with less than 50 employees have to provide Emergency Family Medical Leave.

 

Qualifying Reasons

Employees are entitled for up to 12 weeks of Emergency Family Medical Leave due to a qualifying need related to a public health emergency. Emergency Family Medical Leave will be reduced by any FMLA the employee has used in the preceding 12 months. It is a qualifying need if an employee cannot work or work remotely because of a need to care for a child under 18 years of age effected by school or childcare closures or when the childcare provider is unavailable due to a public health emergency. The employee should provide as much notice as practicable.

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Employee Benefit

Under Emergency Family Medical Leave, an employer must provide an employee with two weeks of unpaid leave. Note that during the initial two-week period, the employee may be qualified for compensation under Paid Sick Leave or as an employer benefit. After the initial two weeks of unpaid leave, an employer must pay employee at least two-thirds of their regular rate of pay for the number of hours the employee would normally be scheduled for. Emergency Family Medical Leave is capped at $200/day and $10,000 in the aggregate.

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Additional Employee Protections

Additional protections exist within the Act to facilitate use of Emergency Family Medical Leave. Most significantly, an employee using leave must be restored to an equivalent position upon returning to work. Employers with 25 employees or less have increased protection in that the employer must make reasonable efforts to restore the employee to an equivalent position, unless the position was eliminated because of economic conditions or other changes in operating conditions caused by COVID-19. In the event that an employee’s position is eliminated, the employer must make efforts to contact the employee for available positions.

Employer Protections

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With regard to job restoration protections, employers must restore employees who take Emergency Family Medical Leave to an equivalent position upon their return. However, employers with 25 employees or less must make reasonable efforts unless the position was eliminated due to economic conditions or other changes in operating conditions caused by the coronavirus. This Act is in effect until December 31, 2020. Amounts paid to employees under this leave requirement will be subject to a tax credit.

 

Enforcement

Enforcement mechanisms and remedies are the same as those under the Family Medical Leave Act (FMLA) for employers with more than 50 employees. Employers with less than 50 employees do not face statutory penalties for violation of the Emergency Family Medical Leave.

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At DeSanto Morgan & Taylor, we offer employment consultations to help apply these new regulations to your employment situation. These consultations focus on the uniqueness of your situation. Please contact us if you would like more information..