Two employment provisions of the Families First Coronavirus Response Act

Joe’Terrious Neal
Attorney at Law

As a part of the Families First Coronavirus Response Act, signed by the President on March 18, 2020, there are two provisions that deal with leave from employment; the “Emergency Family Medical Leave Expansion Act,” which amends the Family Medical Leave Act and the second, the “Emergency Paid Sick Leave Act.”  An employee need only be employed 30 calendar days by the employer to which the leave applies and all employers of under 500 employees are subject to these provisions.  Employers with fewer than 50 employees can apply for an exemption from the Secretary of Labor if it “would jeopardize the viability of the business;” to date, no guidelines for interpretation of this provision have been issued.

These provisions become effective April 2, 2020 and remain in effect until December 31, 2020.  Employers will be repaid monies paid in the form of dollar for dollar federal tax credits paid each calendar quarter against an employer’s portion of Social Security taxes.

The Emergency Family Medical Leave Expansion Act applies if  an employee is unable to work (or telework) due to a need for leave to care for a child under the age of 18 years of age of that employee because the school (elementary or secondary school) or place of child care has been closed, or the child care provider (a provider who receives compensation for providing child care services on a regular basis) is unavailable due to a COVID-19 public health emergency.

Employees qualified under this provision are entitled take up to 12 weeks of FMLA leave; the first 10 days may be unpaid, but the employee may elect to substitute the unpaid leave with any accrued sick, vacation, personal, or medical time. IT is important to note that the election must be made by the employee and cannot be at the discretion of the employer. After the first 10 days, the employee will be entitled to not less than 2/3 of their regular rate of pay based on the hours the employee would normally be scheduled during the leave period.  In no event shall paid leave exceed $200 per day and $10,000 in the aggregate.  If an employee’s work hours vary from week to week to an extent that the employer is unable to determine with certainty the number of hours the employee would have worked during the leave period, then the employer shall use the average number of hours that the employee was scheduled per day over the 6 month period ending on the day the employee took the leave.  If the employee did not work over such period, the employer shall use the average number of hours that the employee expected to work per day at the time of hiring.

Upon the employee’s return from the leave, the employee shall be restored to the same or equivalent position as existed at the commencement of the leave; provided, however, that an employer with less than 25 employees may be exempted from this requirement if it does not have such a position available due to economic conditions or other changes in operating conditions. In such event, the employer should make “reasonable efforts” to contact the affected employee for up to a year after the leave commenced if an equivalent position becomes available.

The Emergency Paid Sick Leave Act requires an employer to provide paid sick leave if the employee is unable to work (or telework) due to a need for leave because: (1) COVID-19 self-quarantine or isolation due to a local, state, or federal Order (2) COVID-19 self-quarantine or isolation upon advise of a healthcare provider; (3) experiencing COVID-19 symptoms and seeking medical diagnosis; (4) caring for an individual who is subject to an isolation order or has been advised to quarantine; (5) caring  for a son or daughter because the child’s school or child care provider is closed due to COVID-19 precautions; and a catch-all, (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.”

The amount of paid sick time is 80 hours for full time employees or the average number of hours a part time employee works over a two-week period.  The rate of pay during the leave is dependent upon whether the absence is due to the employee’s own situation as outlined in items (1), (2), and (3) or the other reasons, (4), (5) and (6).  For the first three, the paid leave will not exceed $511 per day or $5,110 in total, and for the last three, $200 per day or $2,000 in total.

No hours are carried over to another year.  The employer may not require that the employee find a replacement employee to cover the hours which the employee is using paid sick time nor require the employee to use other paid sick leave provided by the employer before the employee uses the paid sick time under this provision.

Unlike the Emergency Family Medical Leave Expansion Act, employees are eligible regardless of how long they have been employed by an employer.

Employers shall post and keep posted, in conspicuous places on the premises where notices are normally posted, a notice prepared or approved by the Secretary of Labor, or the requirements of this Act.  A model notice is to be forthcoming.

The employer shall not discharge, discipline, or discriminate against an employee who takes leave in accordance with this Act and has filed a complaint or instituted any proceeding related to this Act.

For more information please visit: https://www.congress.gov/bill/116th-congress/house-bill/6201/text?q=%7B%22search%22%3A%5B%22coronavirus%22%5D%7D&r=4&s=1

Joe’Terrious Neal is an attorney with Morton & Gettys Law Firm in Rock Hill, SC. He can be reached at (803) 366-33388 or joe.neal@mortongettys.com.

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