President Trump signed into law the Families First Coronavirus Response Act, an economic stimulus plan aimed at addressing the impact of the COVID-19 outbreak. The new law, which goes into effect on April 2, 2020, impacts all businesses with fewer than 500 employees by requiring employers to provide employees additional paid sick leave for illnesses relating to the coronavirus, and by amending the Family and Medical Leave Act to require a blend of unpaid and paid leave for employees who must care for children whose schools and day care providers have closed.
Here is a brief summary of the new law’s provisions.
Temporary FMLA Expansion
The new law does not make a wholesale change to the FMLA. Employers with fewer than 50 employees still do not have to comply with the standard provisions of the FMLA. But all employers with fewer than 500 employees have to comply with the new provisions of the FMLA summarized below.
The new law now require employers to provide employees with up to 12 weeks of leave where the “employee is unable to work (or telework) due to a need for leave to care for [a] son or daughter under 18 years of age . . . if the school or place of care has been closed” because of the COVID-19 emergency. While the first 2 weeks of that leave can be unpaid, the remaining 10 weeks of the leave must be paid at 2/3 of the employee’s regular wages, up to a cap of $200 per day with a $10,000 maximum.
There are some provisions in the Act that are designed to protect small businesses. For example –
- If an employee goes out on leave under this provision, and the employer cannot afford to hire him or her back because of economic conditions or other changes in economic conditions, the business only has to make reasonable efforts to restore the employee to the former position, but does not have an absolute obligation to do so.
- The Department of Labor will have the authority to exempt small businesses with fewer than 50 employees from these additional requirements when compliance with them would jeopardize the viability of the business as a going concern.
- Tax credits will be permitted in the amount of paid leave provided.
- These expanded provisions will terminate on December 31, 2020.
Emergency Paid Sick Leave
In addition to the expansion of the FMLA for childcare coverage described above, the new law also requires employers with up to 500 employees to provide additional paid sick leave to an employee who:
- Is subject to mandatory quarantine for COVID-19.
- Has been advised by a health care provider to self-quarantine because of COVID-19.
- Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
- Is caring for an individual who is subject to mandatory quarantine or has been advised to self-quarantine.
- Is caring for a son or daughter because their school has closed or child-care provider is unavailable because of COVID-19.
- Is experiencing any other substantially similar condition specified by the government in connection with the emergency.
Employers are required to provide full-time employees with 80 hours of paid sick time, and part-time employees with a number of hours of sick time equal to the number of hours that such employee works, on average, over a 2-week period. This sick leave may not carry over from year to year. The Act prohibits employers from discharging, disciplining, or otherwise discriminating against an employee for taking leave under the new law.
Tax credits will be permitted in the amount of paid leave provided subject to a cap of $511 per day per employee unless the leave is used for caring for a family member or child in which case a daily cap of $200 per employee applies.
Employers will be required to post a notice of these rules, which the DOL will be issuing in the coming weeks.
Details and Questions
There are many details of the new law, of course, that require further explanation. Please contact us with any questions you have, either about the law in general, or about how it will affect your business. These issues continue to develop, and we will continue to keep you apprised of them.