Last night, President Trump signed into law H.R. 6201, the Families First Coronavirus Response Act (the “Act”).
The Act appropriates billions of dollars for various programs to provide relief during the COVID-19 pandemic and requires group health plans and health insurers to provide no-cost coverage for COVID-19 testing.
The Act also mandates paid leave in two different ways:
- The Emergency Family and Medical Leave Expansion Act (Division C of the Act); and
- The Emergency Paid Sick Leave Act (Division E of the Act).
This alert summarizes some of the significant aspects of each of these two portions of the Act. Please consult the Act for specifics, and contact your Z&R to discuss your particular circumstances.
Significant aspects of the Emergency FML Expansion Act.
- Effective date: 04/01/2020.
- New leave entitlement: Public Health Emergency Leave (“PHE leave”). From 04/01/2020 through 12/31/2020, eligible employees may request leave for a “qualifying need related to public health emergency,” which means the employee is unable to work or telework because they need to care for their minor child if, due to the COVID-19 emergency, the child’s school or place of care has been closed, or the child’s care provider is unavailable.
- Employee eligibility. An “eligible employee” for purposes of PHE leave is any employee who the employer has employed for at least 30 calendar days.
- Employer coverage. An “employer” for purposes of PHE leave is one with fewer than 500 employees. Please note the Act includes a provision that allows the Secretary of Labor to issue regulations to exclude employers with fewer than 50 employees. We will need to see how this plays out.
- Calculating paid PHE leave. The first 10 days of an employee’s PHE leave may be unpaid. After 10 days, an employer must provide paid leave for the duration of the employee’s PHE leave. Paid PHE leave is calculated based on:
- two-thirds of the employee’s regular rate of pay; and
- the number of hours the employee would otherwise be normally scheduled to work (or the average number of hours scheduled per day over the six-month period preceding the leave, if the employee’s schedule varies from week to week) up to a maximum of $200 per day or $10,000 in the aggregate.
- Notice. If PHE leave is foreseeable, an employee must provide notice of leave “as is practicable.”
- Job Restoration. Normally, the FMLA requires that an employer restore an employee who returns from FMLA leave to his or her position or an equivalent one. Under the Act, these requirements do not apply to employers with fewer than 25 employees if certain conditions are met:
- the employee takes PHE leave;
- the employee’s position no longer exists due to economic conditions or other changes in the employer’s operating conditions that affect employment and are caused by the COVID-19 emergency;
- the employer makes reasonable efforts to restore the employee to an equivalent position; and
- if the employer cannot restore the employee to an equivalent position, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available during the “contact period.” The “contact period” is one year from either (a) the date PHE leave ends, or (b) the date that is 12 weeks after PHE leave starts, whichever is earlier
- No liability for certain employers. Normally, employers who violate the FMLA are subject to civil action by employees. Under the Act, employers with fewer than 50 employees are not subject to civil actions by employees for failing to provide PHE leave (despite the fact that such employers must provide PHE leave, absent further action by the Secretary of Labor).
Significant aspects of the Emergency Paid Sick Leave Act.
- Effective date: 04/01/2020.
- Entitlement. Under the Act, an employer must provide emergency paid sick leave (“EPSL”) to an employee who cannot work or telework because the employee:
- is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- is caring for an individual who is subject to Federal, State, or local quarantine or isolation order related to COVID-19; or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- is caring for their minor child if the child’s school or place of care has been closed, or if the child’s care provider is unavailable due to COVID-19 precautions; or
- 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.” We will have to see how this provision plays out as well.
- Duration. A full-time employee is entitled to 80 hours of EPSL. A part-time employee is entitled to an amount of EPSL equal to the average number of hours the employee works over a two-week period.
- Employee eligibility. Employees are entitled to EPSL regardless of how long the employee has been employed by the employer.
- Employer coverage. “Covered employer” includes any private entity or individual that employs fewer than 500 employees; and any public agency or other entity that is not a private entity that employs one or more employees. Please note the Act includes a provision that allows the Secretary of Labor to issue regulations to exclude employers with fewer than 50 employees. Again, we will need to see how this plays out.
- Employer prohibitions. An employer cannot:
- require that an employee search for or find a replacement employee to cover the hours during which the employee is using EPSL.
- require an employee to use other paid leave provided by the employer before the employee uses EPSL.
- discharge, discipline, or discriminate against any employee who takes EPSL/ has filed any complaint/instituted any proceeding under the Act
- Notice. Employers must post a notice summarizing the Act’s requirements in conspicuous places on premises where notices are customarily posted. The Act directs the Secretary of Labor to make a model notice publicly available by 03/25/2020.
- Calculating EPSL. Under the Act, paid sick time is calculated differently, and subject to different caps, based on the reason for the leave.
- If an employee takes EPSL due to an official quarantine/isolation order, a health care provider’s directive to self-quarantine, or because the employee is experiencing COVID-19 symptoms:
- the employee is entitled to the full amount of his or her wages (sick pay is calculated based on regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work)
- up to a maximum of $511 per day or $5,110 in the aggregate.
- If an employee takes EPSL for any other reason:
- the employee is entitled to two-thirds of his or her wages (sick pay is calculated based on two-thirds of their regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work)
- up to a maximum of $200 per day or $2,000 in the aggregate.
Zashin & Rich will continue to monitor these developments.
*Helena Oroz, an OSBA Certified Specialist in Employment & Labor Law, regularly advises clients on all employment related matters. If you have questions, please contact Helena at hot@zrlaw.com or (216)696-4441.