E-Alerts

President Trump Signs Emergency Spending Bill Providing Paid Sick and Family Leave For Coronavirus-Related Absences

On Wednesday, March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act, H.R. 6201 (the “Act”), an emergency spending bill to support businesses and citizens affected by the COVID-19 pandemic. The Act requires that employers with 500 or fewer employees provide employees with paid sick leave and expanded FMLA coverage.

Below is a high-level summary of the Act’s leave provisions.

Paid Sick Leave Provisions

• Which Employees Are Entitled To Leave? Generally, all employees of covered employers. Employers may elect to exclude employees who are health care providers or emergency responders.

• For What Purposes May Leave Be Taken? Leave may be taken as needed if the employee:

o Is subject to a Federal, State, or local quarantine or isolation order related to COVID–19;

o Has been advised by a health care provider to self-quarantine due to concerns related to COVID–19;

o Is caring for an individual subject to an order or advisement as described above;

o Is experiencing symptoms of COVID–19 and seeking a medical diagnosis;

o Is caring for a son or daughter if the son or daughter’s school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions; or

o 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.

• How Much Leave Is Available? Two weeks. Full-time employees may take up to 80 hours of paid leave. Part-time employees may take an amount of paid leave equivalent to the number of hours they ordinarily would have worked in a typical two-week period. Leave for employees with varying hours is calculated by reference to a six-month average or, if that is not available, the employee’s reasonable expectation at the time of hire. The statute provides that employers may not require employees to utilize leave under existing leave programs before taking paid sick leave under the Act.

• Is the Leave Paid? Yes, at (a) the employee’s regular rate of pay if leave is taken for COVID-19 self-care (up to a maximum of $511/day and $5,110 total); or (b) two-thirds of the employee’s regular rate of pay if leave is taken to care for another individual or pursuant to the “substantially similar condition” provisions (up to a maximum of $200/day and $2,000 total).

• Will Employers Be Reimbursed For Paying Employees During Leave? Yes, through a payroll tax credit.

• Is There A Hardship Exemption? Not at this time. However, the U.S. Department of Labor is authorized to adopt regulations exempting small businesses with fewer than 50 employees from the childcare leave requirements of the paid sick leave provision if adhering to those requirements would jeopardize the viability of the business as a going concern.

FMLA Expansion

The Act also amends the Family and Medical Leave Act of 1993 (FMLA) to extend FMLA job protections to employees absent from work in order to care for their own child(ren) due to coronavirus-related childcare unavailability.

• Which Employees Are Entitled To Leave? Employees who have worked for their employer for at least 30 days. Employers may elect to exclude employees who are health care providers or emergency responders.

• For What Purposes May Leave Be Taken? Employees may take leave if they are unable to work (or telework) due to a need for leave to care for a son or daughter under 18 years of age if son or daughter’s school or place of care has been closed, or the child care provider of the son or daughter is unavailable, due to a public health emergency.

• How Much Leave Is Available? Employees may take up to 12 weeks of job-protected leave.

• Is the Leave Paid? Yes. The first two weeks of leave are unpaid. The remainder (i.e., up to ten additional weeks) must be paid by the employer at a rate equal to two-thirds of the employee’s usual rate of pay (up to a maximum of $200 per day, and $10,000 total).

• Will Employers Be Reimbursed For Paying Employees During Leave? Yes, through a payroll tax credit.

• Is There A Hardship Exemption? Yes, for employers with fewer than 25 employees who are unable, despite reasonable efforts, to restore an employee to his/her former or a substantially similar position due to COVID-19-related economic conditions or other changes in operating conditions. Further, the U.S. Department of Labor is authorized to adopt regulations exempting small businesses with fewer than 50 employees from the requirements of the leave provisions if adhering to those provisions would jeopardize the viability of the business as a going concern.

Employers also will be required to post a notice, which is expected to be issued soon by the Department of Labor. The law becomes effective on April 2, and sunsets at the end of 2020.

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SHPC is closely monitoring developments and guidance on these new employer mandates. For any questions, please contact one of SHPC’s experienced employment attorneys.