The Families First Coronavirus Response Act (the “Act”) will become effective on April 2, 2020.
The Act contains two key provisions for employers with fewer than 500 employees and also addresses employer tax credits.
What employers/employees are covered and/or exempt?
The Act created a temporary, emergency expansion of the Family and Medical Leave Act (“FMLA”). Unlike the FMLA, which only covers employers with 50 or more employees, the Act covers all employers with fewer than 500 employees. Furthermore, unlike the FMLA which requires that an employee work for at least 12 months before becoming eligible for leave, the Act makes employees who have worked for their employer for at least 30 days eligible. Although significantly broader in its coverage, the Act does contain language that would exclude employers with 50 or less employees if the leave would jeopardize the viability of the business.
Why can leave be taken?
The Act provides that an eligible employee, who is unable to work or telework, may take job-protected leave to care for the employee’s child, under 18 years of age, if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency.
How long can leave be taken for?
Is the leave paid?
The first 10 days of any such leave is unpaid. But, an employee may elect to substitute any accrued PTO to cover some or all of this 10-day period. Thereafter, the employer must pay employees 2/3 of the employee’s regular rate of pay. The Act does impose caps of $200 per day and $10,000 in total for each employee.
At the end of the leave, does an employer have to restore an employee to his or her job?
Employers with 25 or more employees are required to restore any employee who has taken leave under the Act to the same or equivalent position upon returning to work. Employers with less than 25 employees, who make reasonable efforts to return an employee to his or her position, are excluded from this obligation if the employee’s position no longer exists following the leave due to an economic downturn to other circumstances caused by a public health emergency during the period of leave.
Emergency Paid Sick Leave
What employers/employees are covered?
All employers with fewer than 500 employees and all employees (regardless of the employee’s duration of employment).
Why can leave be taken?
If the employee is:
1. subject to a federal, state or local quarantine or isolation order related to COVID-19;
2. advised by a health care provider to self-quarantine due to COVID-19 concerns;
3. experiencing COVID-19 symptoms and seeking medical diagnosis;
4. caring for an individual*** subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
5. caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
6. 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.
***Note that the Act uses the term “individual” which, of course, is broader than family member, spouse, child, etc.
How much paid sick leave must be provided?
80 hours (or the equivalent of the average number of hours over two weeks for part time employees) at the employee’s regular rate or 2/3 the employee’s regular rate for reasons 4, 5, or 6 above. Capped at $511 per day for reasons 1, 2, or 3 above and $200 per day for reasons 4, 5, or 6.
Tax Credits for Employers
The Act provides employers who are required to provide paid emergency FMLA or sick leave with refundable payroll tax credits against the employer portion of Social Security and Medicare taxes. Employers are entitled to a quarterly tax credit equal to 100% of the wages paid for FMLA or sick leave under the Act for wages paid out on or after April 2, 2020.
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