The Families First Coronavirus Response Act - What it Means

In response to the ongoing coronavirus emergency, Congress has passed the Families First Coronavirus Response Act. The following is an outline of how this Act changes existing law and how it might impact you or your business.

This basically is a two-part act expanding the scope of the FMLA to employers for whom it did not previously apply and by mandating sick leave pay to employees suffering from COVID-19 related illness issues. This is applicable to all employers with fewer than 500 employees, unless you can get a US Dept of Labor exemption, and will provide two weeks’ worth the paid sick leave and up to three months of paid FMLA to the employees affected by COVID-19.

Employers will receive a 100% tax credit on each quarter to offset the costs of such paid leave.

Employers cannot require employees to use other paid time off or find replacement workers, and both laws prohibit retaliation for taking part in either leave.

Expansion of Family and Medical Leave Act (EFMLEA)

Employers with fewer than 500 employees will provide up to 12 weeks of family and medical leave of which 10 weeks have to be paid at an equivalent to 2/3 pay to those unable to work or telework so they may care for children if schools close or daycare is unavailable.

An individual meets a qualifying need for leave when they are:

• Unable to work or telework due to caring for a child or children under 18 years of age because schools are closed, daycare is closed, or caregivers are unavailable because of public health emergency due to COVID-19.

Eligibility is for any employee who has 30 calendar days of employment (as opposed to the FMLA which requires 12 months and a 75 mile radius)

Pay rates shall be:

• The First 10 days will be unpaid (employees may use vacation, personal, medical or sick leave)
• After 10 days Employees will receive 2/3 regular rate of pay. To calculate the regular rate of pay for an scheduled employee with regular work hours you pay equivalent to their average daily pay. For an employee with variable work hours: (a) Who had had worked for the employer for at least 6 months or more, average the hours the employee was scheduled to work over a 6 month period ending with the start date of the leave to determine hours; (b) Who has worked less than 6 months prior to the leave date, use the average number of hours they were reasonably expected to work at the time of hire.
• Payments are capped at $200 per day for each employee / $10,000 in the aggregate

USDOL may exempt small businesses with fewer than 50 employees if it determines that such imposition would jeopardize employers ability to continue operating.

For employers with 25 or more employees an employee must be reinstated to the same or equivalent position, with employers under 25 employees, the employee must be returned to the position unless it does not exist anymore, in which case they must make reasonable efforts to restore the employee. If they cannot, then the reasonable efforts must continue for on year if such position becomes available.

It would appear that violations of this act by companies with less than 50 employees would not be subject to civil actions for violation of the act, but can be brought before the Secretary of Labor – this will likely be corrected in some respect.

Goes into effect on April 2, 2020 and ends on December 31, 2020

Emergency Paid Sick Leave Act of 2020 (EPSLA)

Employers with fewer than 500 employees must provide 10 days (80 hours) of paid sick leave to full time employees when they cannot work or telework for COVID-19 or any public health emergency. For Part-time employees must provide an equivalent of the average number of hours they work during a two-week work period.

Paid Sick Leave is intended to cover:

• When an employee is subject to a government quarantine or isolation because of a public health emergency (including COVID-19)
• When an Employee has been advised by a healthcare provider, to self-quarantine to prevent spread of COVID-19
• When an employee is experiencing symptoms of COVID-19 and seeking medical diagnosis
• Caring for an individual (not fully determined if the individual has to be a family member) subject to quarantine order or self-quarantine because of COVID-19.
• Caring for their children if schools are closed, daycare is closed, or caregivers are unavailable because of public health emergency due to COVID-19
• Experiencing substantially similar conditions as those specified by Secretary of Health and Human services

When an employee is absent because they are subject to a government quarantine or isolation because of a public health emergency (including COVID-19), advised by a healthcare provider, to self-quarantine to prevent spread of COVID-19, or experiencing symptoms of COVID-19 and seeking medical diagnosis the employer must compensate employees for any paid sick time at the higher of their rate of pay or the federal or local minimum wage but capped at $511 per day and $5111 in the aggregate.

When an employee is absent to care an individual subject to quarantine order or self-quarantine because of COVID-19 or to care for their children if schools are closed, daycare is closed, or caregivers are unavailable because of public health emergency due to COVID-19 then the Employer will pay $200 per day or $2000 in the aggregate.

All employees, regardless of length of employment are eligible for the leave

This is considered to be in addition to existing sick leave already offered by employers

Cannot require an employee to use or exhaust other paid leave time before they use this paid leave.

Need to do posting of this in conspicuous places on the employers premises

Nothing prohibits changes in employers policies after law goes into effect

Goes into effect on April 2, 2020 and ends on December 31, 2020

Stephen D. Lanterman is an attorney licensed to practice in state and federal courts in Kansas, Missouri and Nebraska. Mr. Lanterman regularly consults with both businesses and individuals on employment matters. If you have questions about how these acts may impact your rights or your business, call Steve at 785-357-6311.

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.