Presented by Employment Law Practice Group

Guidance For Employers: President Signs Families First Coronavirus Response Act Into Law – FMLA Is Expanded to Include Public Health Emergency as Qualifying Leave Reason

By
Ashley L. Toth

Yesterday the President signed into law the Families First Coronavirus Response Act (FFCRA), which is aimed at curbing the financial impact of the Coronavirus pandemic on employees. As the first federal law requiring private employers to provide paid sick leave, the FFCRA also creates amendments to the Family and Medical Leave Act, expanding it to include a public health emergency as a qualifying leave reason. The law goes into effect in 15 days. Here are some of the highlights.

EMERGENCY PAID SICK LEAVE

Step 1: Who Qualifies for Paid Sick Leave

Employers with greater than 50 employees*, but less than 500 employees, are required to provide paid sick leave for full-time and part-time employees if:

  1. The employee is subject to a federal, state, or local quarantine or an isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in subparagraph (2);
  5. The employee is caring for his or her son or daughter if the school or place of care has been closed or the child care provider is unavailable due to COVID-19 precautions; or
  6. The employee 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.

An employer who is a health care provider or an emergency responder may elect to exclude an employee from application of the emergency paid sick leave provisions.

All employees qualify for this emergency paid sick leave, irrespective of the employee’s length of employment.

Emergency Paid Sick Leave is available to employees who are unable to complete their job responsibilities by working remotely.

Step 2: How Much to Pay

Full-Time Employees: 80 hours (2 weeks) of regular pay, unless emergency paid sick leave is for a use set forth in (4), (5) or (6) above, in which case the employee is entitled to two-thirds of their regular pay.

Part-Time Employees: Pay equal to the number of hours worked on average over a two-week period, unless emergency paid sick leave is for a use set forth in (4), (5) or (6) above, in which case the employee is entitled to two-thirds of their regular pay.

The maximum amount of sick pay during the leave will not exceed $511 per day ($5,110 aggregate) when sick leave is used for reasons (1)-(3) listed above and will not exceed $200 per day ($2,000 in the aggregate) when used for reasons (4)–(6).

EXPANSION OF FAMILY MEDICAL LEAVE ACT (FMLA) TO INCLUDE PUBLIC HEALTH EMERGENCY AS A QUALIFYING REASON FOR LEAVE

This expansion does not change the entire FMLA as it currently reads, it simply adds an additional qualifying reason to the FMLA.

Step 1: Who Qualifies for FMLA Public Health Emergency Leave Time

Employers with greater than 50 employees**, but less than 500 employees, are required to provide paid public health emergency leave for full-time and part-time employees if:

  • “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter of such employee if the school or place of care has been closed or the child care provider of such son or daughter is unavailable due to a public health emergency”

Unlike other categories of leave under the FMLA, Public Health Emergency Leave is available to any employee who has been employed for 30 calendar days.

Employees who have exhausted their FMLA leave for a serious health condition may be ineligible for FMLA Public Health Emergency Leave.

Employers who are health care providers and emergency responders may elect to exclude employees from FMLA leave for a public health emergency.

Step 2: What Is Paid

The first 10 days of a public health emergency leave are unpaid. Employees, however, are entitled to utilize any available “sick leave” or “paid time off” provided by state statute or their employer, including the Emergency Paid Sick Leave discussed above.

Employees are entitled to 12 weeks of public health emergency leave time, payable at a rate of two-thirds their regular rate, with a cap not to exceed $200 per day and $10,000 in total.

Step 3: Anti-Retaliation and Reinstatement

The expansion of the FMLA does not change the existing requirements relating to anti-retaliation and reinstatement of the employee to the same or substantially similar position.

 

 

*Companies with fewer than 50 employees must first apply for an exemption to the FFCRA. In order to be excluded the company must certify that the requirement of paying for sick leave would jeopardize the viability of the business as going concern.

**Companies with fewer than 50 employees must first apply for an exemption to the FFCRA. In order to be excluded the company must certify that the requirement of paying for sick leave would jeopardize the viability of the business as going concern.

 

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