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President Trump signed the Families First Coronavirus Response Act on March 18, 2020, making the law effective on April 2, 2020. In addition to providing funding for benefit programs such as WIC and SNAP, it provides additional protections for employees such as paid leave and job protection related to the COVID-19 public health emergency. The Act expands the Family Medical Leave Act (FMLA) and creates federal paid sick leave.
Emergency Family and Medical Leave Expansion Act (Emergency FMLA)
The Act significantly expands the Family Medical Leave Act (FMLA) on a temporary basis, from April 2, 2020 until December 31, 2020.
An employee is eligible to receive the benefits of Emergency FMLA if the employee was employed for at least 30 days by the employer. This expands eligibility under traditional FMLA, which typically requires that an employee be employed for 12 months. Emergency FMLA also expands the applicability of an employer under FMLA. FMLA excludes employers with less than 50 employees. Emergency FMLA, however, applies to an employer with fewer than 500 employees. Although, Emergency FMLA gives the Secretary of Labor authority to exclude certain health care providers and emergency responders as well as small businesses with fewer than 50 employees if it would jeopardize the viability of the employer’s business.
Reason for Leave
Emergency FMLA applies to an employee who is unable to work, or telework, due to a need for leave to care for a child (under 18 years of age) if the school or place of care has been closed, or the child care provider is unavailable due to an emergency with respect to COVID-19.
An employer must pay at least two-thirds of an employee’s regular rate of pay for the number of hours the employee would normally be scheduled to work. For an employee who works inconsistent hours and the employer cannot determine the number of hours the employee would have worked, the employer must determine the average hours per day over a six month period. Although, the first ten days of leave may consist of unpaid leave. The employee may substitute vacation, PTO, or sick leave during these ten initial unpaid days. Emergency FMLA also caps the amount of payment to an employee at $200 each day and $10,000 in total.
Like in typical FMLA leave, an employer is obligated to make reasonable efforts to restore the employee to an equivalent position when the employee returns to work. However, this obligation generally does not apply to employers with less than 25 employees if the position no longer exists due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency. Emergency FMLA additionally requires the employer to make reasonable efforts to return the employee to an equivalent position for up to one-year.
Emergency Paid Sick Leave Act
The Emergency Paid Sick Leave Act entitles employees with two weeks of paid sick leave for COVID-19 related reasons and makes it unlawful to retaliate against employees for seeking paid sick leave.
The Emergency Paid Sick Leave Act requires employers to provide employees with paid sick time when they are unable to work, or telework, because the employee:
However, as with Emergency FMLA, emergency responders and health care providers may be excluded from coverage.
An employer may not require that the employee search for a replacement to cover the employee’s hours as a condition of providing paid sick time. Additionally, an employer may not require an employee to use other paid leave provided by the employer prior to using the paid sick time under this Act.
An employee may receive the paid sick leave regardless of how long the employee has been employed by the employer.
A full-time employee is entitled to 80 hours of sick leave, and a part-time employee is entitled to the number of hours an employee works on average for a two-week period. Employees, however, may not carry over their paid sick time from one year to the next.
Penalties for Employers Who Do Not Comply
If an employer fails to provide paid leave under the Act, the employer is considered to have failed to pay minimum wages in violation of the Fair Labor Standards Act (“FLSA”). The employer is then subject to the penalties of liquidated damages under the FLSA.
The act makes it unlawful for an employer to terminate, discipline, or in any other manner discriminate against any employee for (1) taking leave under the Act , (2) filing a complaint or instituting a proceeding under the Act, or (3) testifying or is about to testify in a proceeding under the Act. If the employer retaliates against an employee for asserting rights under the Act, the employer is in violation of the retaliation provisions of the FLSA.