On March 18, 2020, President Trump signed the Families First Coronavirus Protection Act (the “Act”) into law. The Act includes provisions to assist employers and employees during these extraordinary times.
Expansion of Protections Under the Family and Medical Leave Act
For the period of time beginning April 2, 2020 to December 31, 2020, the Act expands the protections of the Family and Medical Leave Act (“FMLA”). Employees may be eligible for a combination of paid and unpaid leave for a period of up to 12 weeks under the FMLA, under certain conditions.
This requirement applies only to employers with fewer than 500 employees. The Act gives the Department of Labor authority to exempt small employers (those with fewer than 50 employees) where the imposition of the Act’s requirements would jeopardize the viability of the business as a going concern. The Department of Labor will use guidance on this procedure. Employers of health care professionals and emergency responders may also elect not to comply.
Eligible employees will receive 2 weeks of unpaid leave and 10 weeks of paid leave. To be eligible for leave, the employee must have been on the employer’s payroll for 30 days. The Act applies where the employee is unable to work or telework to care for a child of an employee if the child’s school or place of care has been closed, or the childcare provider is unavailable, due to the Covid-19 crisis.
The employer has no obligation to pay for the first two weeks, but the employee is free to use paid time off during this period. The employer cannot require the employee to exhaust paid time off. After the first two weeks of unpaid leave, employers must continue paid leave, calculated as two-thirds of the employee’s usual rate of pay. The maximum amount of paid leave under the Act is $200 per day and $10,000 in the aggregate.
Employers must return the employee to the same or equivalent position upon return to work. There is an exception for employers who employ less than 25 employees – if the position no longer exists due to the Covid-19 crisis, the employer must make “reasonable efforts” to restore the employee to an equivalent position over a one-year period.
Two Weeks of Emergency Paid Leave
The Act requires employers with fewer than 500 employees to provide full-time employees with 2 weeks of paid sick leave, and to provide part-time employees with the equivalent of average hours per week for 2 weeks, if the employee is unable to work or telework because the employee:
- is subject to a quarantine or isolation order;
- has been advised by a health care provider to self-quarantine;
- is experiencing symptoms and seeking a medical diagnosis;
- is caring for an individual (not limited to family members) who is subject to a quarantine order, has been advised to self- quarantine, or is experiencing symptoms;
- is caring for a son or daughter whose school or place of care has been closed or the child care provider is unavailable; or
- is experiencing similar conditions to any specified by the Secretary of Health and Human Services in consultation with the Secretaries of Labor and the Treasury.
A few limitations apply to this requirement. If the leave is required because the employee is subject to a quarantine order, has been advised to self- quarantine or is experiencing symptoms and seeking a diagnosis, paid leave under this provision shall not exceed $511 per day and $5,110 in the aggregate Where the leave is necessary to care for another or a child, paid leave under the Act is limited to $200 per day and $2,000 in the aggregate. The Act limits the required payment to two-thirds of an employee's regular rate of pay (subject to the caps) for care of family members.
For this provision, the Department of Labor has substantial authority to issue guidance on which employers may be excluded from this requirement.
This leave is available for immediate use by employees, regardless of length of employment. Employers cannot require employees to exhaust other paid leave before using the paid leave provided by the Act.
Antheil Maslow & MacMinn will continue to provide guidance to employers with regard to the Coronavirus Outbreak on employment, tax and related issues as they develop. Please contact Employment Law partner Patricia Collins or Tax Law partner Michael Mills, with questions.