Yesterday, the Families First Coronavirus Response Act (the “Act”) became law when President Donald Trump signed it. The Act will provide significant relief to a wide swath of workers across the country, in response to the COVID-19 public health emergency. In particular, the Act provides millions of U.S. workers with up to twelve weeks of FMLA leave (the “FMLA Expansion Act”), with most of it paid, and as much as two weeks of paid sick leave (the “Paid Sick Leave Act”) for personal or family reasons relating to the COVID-19 outbreak. Both provisions are summarized below.

Emergency Family and Medical Leave Expansion Act (“FMLA Expansion Act”)

When does the FMLA Expansion Act take effect; when does it end?

• The Act goes into effect on April 2, 2020. It expires on December 31, 2020.

Which employers are covered by the FMLA Expansion Act?

• All private sector employers, with 500 or fewer employers

Which employees are eligible for expanded FMLA leave?

• All full- or part-time employees who have been employed with a covered employer for thirty calendar days or more

What is a “qualifying need” for leave related to a public health emergency under the FMLA Expansion Act?

• The Act limits a “qualifying need” for leave to those situations where an employee is unable to work or telework in order to care for a child of the employee whose school or care center has been closed or is otherwise unavailable due to coronavirus.

How much leave under the FMLA Expansion Act is paid leave?

• The first 10 days for which an employee takes leave may be unpaid leave.
  • An employee may voluntarily choose to substitute accrued vacation, personal leave, or sick leave for any or all the first 10 days of unpaid leave.
  • Employers may not require the employee to use such leave.
• All leave after the first 10 days becomes paid leave, payable in an amount that is not less than two-thirds of the employee’s regular rate of pay under the Fair Labor Standards Act for the number of hours the employee would usually be scheduled to work.
  • Employee paid leave is capped at $200 per day, with a maximum paid leave benefit of $10,000.

Do employees still have the right to be restored to the position they held prior to taking leave under the FMLA Expansion Act?

• The employee’s right to job restoration is the same as it would be under the FMLA. The FMLA Expansion Act does provide for an exception applicable only to employers with fewer than 25 employees, if the particular position no longer exists after the employee’s leave ends due to an economic downturn or changed operating conditions necessitated by coronavirus (Employers take note that you must make a reasonable effort to return the employee to an equivalent position and are allowed to contact the employee for up to a year after displacement if an equivalent position becomes available.)

How is the paid FMLA leave funded?

• The Act provides employers with a full tax credit for the full amount of paid FMLA leave paid by an employer for each calendar quarter as an offset against the employer’s portion of Social Security taxes.

Emergency Paid Sick Leave Act (“Paid Sick Leave Act”)

Which employees are eligible for paid sick leave?

• All full- and part-time employees are immediately eligible for paid sick leave.

Which employers are subject to the requirements of the Paid Sick Leave Act?

• The Paid Sick Leave Act is applicable to all private entities or individuals that
  • engage in commerce or in any industry or activity affecting commerce, and
  • employ fewer than 500 employees

When does the Paid Sick Leave Act become effective; when does it end?

• The Paid Sick Leave Act will go into effect on April 2, 2020 and expire on December 31, 2020.

What events or circumstances trigger employer paid sick leave under the Paid Sick Leave Act?

• Employers are required to provide an employee with paid sick time in order to:
  • self-isolate because the employee is diagnosed with coronavirus
  • obtain a medical diagnosis or medical care for symptoms of coronavirus
  • comply with a recommendation or order of a public official that the employee’s presence would jeopardize the health of others because the employee has been exposed to coronavirus or is exhibiting its symptoms
  • care for or assist an employee’s family member who is experiencing or subject to one of the foregoing bases, or
  • care for the employee’s child, if the child’s school has been closed or the child’s day care is closed or otherwise unavailable due to coronavirus

How much paid sick leave is available to an employee under the Paid Sick Leave Act?

• For full-time employees, 80 hours of paid leave
• For part-time employees, paid leave equal to the number of hours the employee works, on average, during a two-week period

Can paid sick leave under the Paid Sick Leave Act be carried over from one year to the next?

• The Act expires on December 31, 2020.

What is the rate and total amount of pay for paid sick leave?

• The rate of paid leave for the first three bulleted reasons above is capped at $511 per day, with total paid leave limited to $5,110.
• Paid leave taken in conjunction with an employee’s care for a family member or employee’s child when school or daycare is closed for public health concerns, is capped at $200 per day and $2,000 in total leave benefits.

What effect does the Paid Sick Leave Act have on Employers with Existing Paid Leave Policies?

• Paid leave under the Paid Sick Leave Act is in addition to any paid leave an employer already makes available to employees.
• Employers may not change their existing paid leave policy for the purpose of mitigating the impact to the employer of the Paid Sick Leave Act.
• Employers may not require employees to use employer-provided paid sick leave before utilizing paid sick leave mandated under the Paid Sick Leave Act.

Does the Paid Sick Leave Act penalize employers who violate the above requirements?

• The U.S. Department of Labor is responsible for administration of the Paid Sick Leave Act. An employer who fails to comply with its paid sick leave requirements is subject to the same penalties as provided for a violation of the minimum wage requirements under the Fair Labor Standards Act.
• Further FLSA-equivalent penalties will be imposed against an employer who discharges, disciplines, or otherwise discriminates against an employee for use of paid sick leave provided by the Paid Sick Leave Act, or for retaliating against an employee who files a complaint or initiates proceedings for violation of the Paid Sick Leave Act.

Do employers have to post workplace notice of the requirements of the Paid Sick Leave Act?

• The DOL is required to publish a model notice for employers to post in a conspicuous workplace location within 7 days of the effective date of the Paid Sick Leave Act.

Will employers be out-of-pocket for paid sick leave provided to employees under the Paid Sick Leave Act?

• Like paid FMLA leave, the Paid Sick Leave Act provides for a refundable tax credit in the full amount of qualified paid sick leave paid by the employer.