On Wednesday, March 18, 2020, the Families First Coronavirus Response Act was passed by the Senate and signed by President Trump. The Act is now official and takes effect on April 2, 2020. 

Below is an overview of the Act’s most critical employment requirements for colleges and universities. All provisions are specifically limited to the COVID-19 health crisis and expire by December 31, 2020. Of course, in addition to these new requirements, colleges and universities continue to be bound by all other provisions of the FMLA, ADA, Title VII, FLSA, and state law. 

The Education Team at Nelson Mullins has been carefully following Coronavirus-related developments and is standing by to assist colleges and universities as they adapt to the changing landscape brought about by COVID-19.

Employers Covered

All public colleges and universities are covered by the Act. All private colleges and universities with 500 or fewer faculty and staff are also covered. There are some exceptions for private colleges and universities with fewer than 50 faculty and staff if they can demonstrate that providing the leave in the Act would not be financially viable. Additionally, for any colleges and universities that employ health care providers or emergency responders, they may exclude those categories of employees from the leave provided in the Act.

Emergency Family and Medical Leave Expansion Act

The Act provides 12 weeks of job-protected leave under a new “public health emergency” section of the Family and Medical Leave Act (FMLA). This leave is available if the faculty or staff member is unable to work (or telework) due to a need to care for the his/her minor son or daughter if the school or place of care has been closed, or the faculty or employee’s child care provider is unavailable, due to a public health emergency associated with COVID-19.

In order to be eligible, a faculty member or other employee need only to have been on the college or university’s payroll for 30 days (as opposed to the FMLA’s usual 12 month/1,250 hour requirement).

A faculty member or employee may use the Act’s new paid sick leave provisions (described below) or he/she may choose to substitute any other accrued leave during the first 10 days. After the first 10 days of leave, if the faculty or other employee still requires the COVID-19 public health emergency leave, colleges and universities must continue paid FMLA leave at a rate of no less than two-thirds of the employee’s usual rate of pay, subject to a cap of $200 per day and $10,000 total. 

As with traditional FMLA leave, this leave is job-protected, meaning the college or university must return the faculty or staff member to the same or equivalent position upon their return to work. There is an exception to the job-restoration requirements for private employers with less than 25 employees if the employee’s position no longer exists due to economic conditions or other changes in the operating conditions of the employer that affect employment.

Emergency Paid Sick Leave Act

The Act requires colleges and universities to provide faculty and staff with up to 80 hours of paid sick leave if they are unable to work (or telework) due to a need for leave because of any of the following reasons:

1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. The employee has been advised by a health 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 a quarantine or isolation order or who has been advised by a health provider to self-quarantine due to concerns related to COVID-19;
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions;
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. 

Full-time faculty and employees are entitled to 80 hours of leave, and part-time faculty and employees are entitled to the typical number of hours that they work in a typical two-week period. The leave is paid at the individual’s full regular rate if the faculty or employee is taking leave for him/herself under paragraphs (1)-(3), subject to a maximum cap of $511 per day and $5,110 total. The leave is paid at two-thirds of the individual’s regular rate if the faculty or employee is taking leave to care for others under paragraphs (4)-(6), subject to a maximum cap of $200 per day and $2,000 total. 

The paid sick leave is available to all faculty and staff of a college or university (who have a qualifying need relating to COVID-19) regardless of how long they have worked for the employer. (To be clear—the 30-day employment requirement in the FMLA amendments above do not apply to these paid sick leave provisions.) 

The paid sick leave hours provided under this Act do not have to be paid out upon a faculty or employee’s separation from employment and do not carry over from year to year.

The Act prohibits employers from requiring a faculty or staff member to find a replacement to cover their hours while they will be taking this COVID-19 paid sick time. Additionally, the Act prohibits employers from requiring a faculty or staff member to use other pre-accrued leave before the employee uses the COVID-19 paid sick leave. 

The Act requires that notice of these provisions be posted by April 2nd where the college or university customarily posts employee-related legal notices. The Secretary of Labor will distribute model notices within the next 7 days. The Act also includes anti-retaliation protections, and generally provides for remedies in line with Fair Labor Standards Act penalties for failure to pay minimum wages.

Employees Covered by Collective Bargaining Agreements

Employers can make contributions to a multiemployer plan, provided employees can receive pay from such plan based on hours worked under the multiemployer collective bargaining agreement for paid leave taken under FMLA.

Refundable Tax Credits

The Act does not provide any relief to public colleges and universities for the financial burdens associated with the leave requirements. However, private colleges and universities with less than 500 employees that comply with the Act can apply for tax credits to offset 100% of the required expenses associated with various types of leave mandated under the Act. Those tax credits will be subject to the same dollar figure caps contained in the Act for the leave. In addition, the Act provides some tax credit relief to private colleges and universities that incur added health insurance premiums as a result of continuing an employee’s health insurance during a period of leave covered by the Act. The Treasury Department and IRS are expected to issue additional regulations to address these refundable tax credits.