HARMON CURRAN NONPROFIT LAW BLOG

On Wednesday night, President Trump signed into law the Families First Coronavirus Response Act. Effective April 2, 2020 (15 days after enacted) and set to sunset on December 31, 2020, the law enacts new provisions providing for Emergency Family and Medical Leave and Emergency Paid Sick Leave. The new law, which applies to employers with fewer than 500 employees, specifically does the following:

• Creates Emergency Family and Medical Leave:
  • Available to any employee with at least 30 days of service.
  • Provides job protected leave if the employee is unable to work (or telework) due to a need for leave to care for their son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, as a result of a COVID-19 public health emergency declared by a Federal, State, or local authority.
  • For employers with less than 25 employees, the requirement of job protection does not apply if the job held by the employee is eliminated as a result of changes in economic or operating conditions due to the COVID-19 emergency and the employer has no equivalent position available and notifies the employee of available equivalent openings for a one year period.
  • Leave is unpaid for the first ten days, but the employee may elect (but cannot be required) to substitute any accrued vacation leave, personal leave, or medical or sick leave.
  • After the first ten days, employers must provide paid leave for each subsequent day of leave taken for the emergency purpose, up to an additional 10 workweeks. There is a cap on the amount of pay — not less than two-thirds of an employee’s regular rate of pay for the number of hours the employee would otherwise be normally scheduled to work, but not to exceed $200 per day and $10,000 in the aggregate.
  • The Department of Labor can, by regulation, exempt businesses with fewer than 50 employees from the requirements to provide leave if doing so would jeopardize the viability of the business as a going concern.
• Enacts Emergency Paid Sick Leave:
  • Available to any employee employed by an employer.
  • Full-time employees, regardless of length of service, are immediately eligible for up to 80 hours of paid sick leave; part-time employees, regardless of length of service, are immediately eligible for the number of hours of sick leave equal to the number of hours that the employee works, on average, over a 2-week period.
  • Paid sick leave does not carry over from one year to the next.
  • Paid sick leave is available to employees 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 quarantine or self-quarantine;
    • The employee is caring for their son or daughter 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; or
    • 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
  • If the sick leave is taken for the employee’s own health condition, the employee must be paid at their regular rate of pay, but not more than $511 per day and $5,110 in the aggregate; if the sick leave is taken for one of the other allowable purposes that involve caregiving, the employee must be paid at 2/3rds their regular rate of pay, but not more than $200 per day and $2,000 in the aggregate.
  • An employer may not require, as a condition of providing paid sick time, that the employee search for or find a replacement employee to cover the hours during which the employee is using paid sick time.
  • An employer may not require an employee to use other paid leave provided by the employer before the employee uses the paid sick time required under the new law for the qualifying purposes.

The Act does not diminish any rights or benefits employees may have under existing federal laws, under existing or future state or local leave or benefits requirements, such as the DC Sick and Safe Leave Act, or under existing employer policies. Furthermore, the Act provides for a refundable tax credit to employers that must provide either type of paid leave required under the Act, up to the caps on payment set forth in the law, against the employer portion of the Social Security payroll tax paid by the employer.

If you have any questions about this new Act, please contact us.