[co-author: Robert Hull]
On March 18, 2020, President Donald J. Trump signed the Families First Coronavirus Response Act (H.R. 6201), a bipartisan bill which responds to the COVID-19 outbreak by providing, among other benefits, paid sick leave and additional protections to employees affected by COVID-19.
The Families First Coronavirus Response Act is planned to take effect 15 days after the date of enactment through December 31, 2020, and includes the following temporary measures:
12 Weeks of (Partially Paid) Protected Leave: Emergency Family and Medical Leave Expansion Act (EFMLEA)
Under the EFMLEA eligible employees will be entitled to 12 weeks of protected leave if unable to work (or telework) due to a need to care for the employee’s son or daughter (under 18 years of age) in the event of school or childcare closure due to a COVID-19 emergency, as declared by federal, state or local authority.
Eligible Employees/Covered Employers
The EFMLEA defines an “eligible employee” as an employee who has been employed for at least 30 calendar days by the employer.
EFMLEA covers employers with 500 or fewer employees.There is currently no exemption for smaller businesses but the DOL has authority to issue regulations to exempt companies with fewer than 50 employees when the imposition of leave would jeopardize the viability of the business.
Paid Leave and EFMLEA Cap
The first 10 days of EFMLEA leave may be unpaid, but an employee may elect to use any accrued vacation, sick, or other paid time off during the unpaid portion of the leave (see temporary sick leave requirements below).
After the first 10 days, leave must be paid at not less than 2/3 of the employee’s regular rate of pay, up to $200 per day and $10,000 in the aggregate.
Duty to Reinstate
Generally, employers must reinstate employees returning from leave. However, the EFMLEA provides an exception for employers with 25 or fewer employees, if all the following conditions are met:
- The employee takes an EFMLEA leave;
- The position held by the employee at the commencement of the leave no longer exists due to economic conditions or other changes in operations;
- The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment;
If the above reasonable efforts fail, the employer makes reasonable efforts during a one-year period, following the end of the employee’s leave, to contact the employee if an equivalent position becomes available.
Additional Paid Sick Leave: Emergency Paid Sick Leave Act (EPSLA)
Eligible Employees/Covered Employers
A “covered employer” is any private entity or individual with 500 or fewer employees or any public agency or non-private entity that employs 1 or more employees.
Eligible employees may use paid sick time regardless of how long they have been employed by a
Permissible Uses and Paid Sick Leave Amount
Under the EPSLA, employers must provide employees paid sick time if an employee is unable to work (or telework) due to a need for leave because:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to a quarantine order or has been advised to self-quarantine.
- 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.
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Paid sick time for eligible full-time employees means 80 hours. Paid sick time for part-time employees means the number of hours the employee works on average over a two-week period.
How Paid Sick Leave Is Calculated and EPSLA Cap
Paid sick leave to care for the employee (paragraphs 1 – 3 above) should generally be calculated based on the employee’s regular rate of pay (no less than the applicable minimum wage).
Paid sick leave to care for family members (paragraphs 4 – 6 above) should be calculated based on 2/3 of the employee’s regular rate of pay.
In no event should paid sick leave under the EPSLA exceed:
- $511 per day and $5,110 in the aggregate for a use described in paragraphs 1 – 3 above; and
- $200 per day and $2,000 in the aggregate for a use described in paragraphs 4 – 6 above.
No Carry Over of Unused Paid Sick Leave
Paid sick leave under the EPSLA will not carry over to the following year and will cease beginning with the employee’s next scheduled work shift immediately following the termination of the need for paid sick time.
As with California law, paid sick leave under EPSLA cannot be conditioned on an employee finding a replacement to cover the hours during which the employee is using paid sick time.
Paid sick leave under the EPSLA must be provided to employees in addition to any existing paid leave policies that an employer already provides.
Employers may not require employees to use other forms of paid time off before using paid sick time under the EPSLA.
Tax Credits for Paid Sick and Paid Family and Medical Leave
Employers may be allowed a credit against payroll tax in an amount equal to 100 percent of the qualified sick leave wages and/or family leave wages paid by an employer (subject to applicable caps) with respect to each calendar quarter.