President Trump has signed the Families First Coronavirus Response Act (the “Act”), which provides for a limited period of paid sick leave and expands the Family and Medical Leave Act to provide an extended period of unpaid or partially paid leave for a public health emergency (“E-FMLA”). This article discusses the main provisions of the Act, which have not changed from the House Bill.

PAID LEAVE PROVISION
The Emergency Paid Sick Leave Act (the paid leave provision) requires private employers who employ fewer than 500 employees (and government employers) to provide paid sick time to employees to the extent that the employee is unable to work (or telework) because:

1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine.
5. The employee is caring for a son or daughter because the child’s school or place of care has been closed or the child’s childcare is unavailable due to COVID-19.
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.

Exception: Employers of health care providers or emergency responders may elect not to provide this leave to employees.

Employers may require employees to follow reasonable notice procedures to continue to receive Paid Sick Leave after the first workday (or a portion thereof) an employee received paid sick time.

How Much Leave Will Qualified Employees be Entitled To?
Paid sick time must be made available to all employees, no matter how long their tenure. Full-time employees are entitle to 80 hours of paid sick leave, while paid sick leave for part-timers is equal to the average number of hours the employee works over a two-week period. There is no carryover from year to year for this paid sick time, and once the employee returns to work the employer is not required to provide any further paid sick leave as required by the Act. Employers cannot require an employee to find a replacement before allowing the employee to take this paid sick time.

Pay During Leave
If time off is taken for self-care, employees must be compensated at the higher of (1) the employee’s regular rate of pay, (2) federal minimum wage, or (3) the local minimum wage. If time off is taken to care for a sick family member or a child who is not in school, the employees must be compensated at two-thirds of their regular rate of pay.

There is a cap on the amount an employer is required to pay to employees receiving Paid Sick Leave. These caps differ depending on whether the employee is receiving full wages or two-thirds wages. There is a cap of $511 per day and an aggregate limit of $5,110 for those receiving full wages (categories 1, 2, and 3 above). For categories 4, 5, and 6 (where the employee would be paid at a two-thirds rate), there is a $200 cap per day, with $2,000 aggregate.

Required Posting
Employers will be required to post an approved notice regarding the Act once the Secretary of Labor makes it available.

Employee Protections and Employer Penalties for Non-Compliance with the Paid Leave Provisions
The Act prohibits employers from discriminating against an employee who takes this emergency paid sick leave and has filed any complaint, instituted or caused to be instituted any proceeding under the Act, or has testified or is about to testify in any such proceeding. Employers who fail to provide this paid sick time or who terminate an employee for discriminatory reasons as set forth above will be considered in violation of the Fair Labor Standards Act (FLSA) and subject to the FLSA’s penalties, including payment of back pay, liquidated damages, and attorneys’ fees.

Available Tax Credits
To ease some of the financial burden of compliance, the Act provides for a limited refundable employment tax credit equal to the amount that an employer pays to an employee under this provision, i.e., up to $511 for any day of absence for the reasons numbered 1, 2, and 3 above, or $200 for any day of absence for the reasons numbered 4, 5, or 6, above, to a maximum of ten days per employee for the year. Those amounts are increased by the amount of nontaxable health insurance premiums paid by the employer for employees who are out on Emergency Paid Sick Leave, for the days of leave, and further increased by the amount of Medicare tax owed by the employer with respect to the Emergency Paid Sick Time payments (generally 1.45%). The total credit amount is then also included in the employer’s income for income tax purposes.

EXPANSION OF FMLA LEAVE FOR PUBLIC HEALTH EMERGENCIES
In addition to the Emergency Paid Sick Time Act, the Families First Coronavirus Response Act also contains an Emergency Family and Medical Leave Expansion Act (the “E-FMLA”). The E-FMLA expands the protections of the Family and Medical Leave Act to add Public Health Emergency Leave. These amendments are effective through December 31, 2020, and provide for leave due to a public health emergency qualifying need (i.e., coronavirus).

Qualifying Reasons for Leave
Emergency FMLA leave is available under these amendments if an employee is unable to work (or telework) due to a need for leave to care for the employee’s son or daughter who is under 18 because the child’s school or place of care has been closed or his or her childcare provider is unavailable due to a public health emergency.

Eligible Employees
An employee is eligible for E-FMLA if the employee seeking leave has been employed for at least 30 calendar days.

Employees of health care provider or emergency responder employees may exempt those employees from coverage.

Covered Employers
All employers with fewer than 500 employees will be required to provide this leave.

Pay During Leave
The Act provides for a combination of unpaid and paid leave. The first 10 days of E-FMLA may be unpaid, but an employee may elect (and an employer may require an employee) to substitute any accrued vacation, personal leave, or medical or sick leave for unpaid leave. For many employees, that leave period will be paid as a result of the Emergency Paid Sick Time Act. After 10 days, employers shall provide partial paid leave for each additional day of leave at an amount that is not less than two-thirds of an employee’s regular rate of pay for the number of hours the employee would otherwise be scheduled to work. For employees who have weekly working hours that fluctuate, the employer is allowed to take an average over a six-month period. There are also caps in place on the amount an employer is required to pay to employees receiving E-FMLA. Paid E-FMLA may not exceed $200 per day and $10,000 in the aggregate.

Job Restoration
FMLA’s standard job restoration requirements will apply to employers with 25 or more employees. For employers who employ fewer than 25 employees, job restoration is not required if all the following conditions are met:

1. The employee takes E-FMLA
2. The position held by the employee does not exist due to economic conditions or other changes in operating conditions that affect employment and are caused by a public health emergency during the period of leave
3. The employer makes reasonable efforts to restore the employee to an equivalent position.

If no equivalent positions are available at the time the employees tries to return from leave, the employer must attempt to contact the employee if an equivalent position becomes available in the next year.

Exemptions and Special Treatment
The Secretary of Labor has the authority to exempt certain employers, including health care providers, emergency responders, and businesses with under 50 employees. Exemptions will be granted only if the leave requirement would jeopardize the business as an ongoing concern. Whether the Secretary of Labor will grant such exemptions is unknown. Importantly, employers with fewer than 50 employees cannot be sued for violations of the E-FMLA provisions. A signatory to a multiemployer collective bargaining agreement may fulfill it’s obligations by making contributions to a multiemployer fund, plan or program equal to the paid leave to which its employees are entitled under these emergency leave provisions while working under the multiemployer CBA, if the fund, plan, or program entitles employees to secure pay based on the hours they have worked under the multiemployer CBA when taking paid leave under the amendments.

Tax Credits
As with the Emergency Paid Sick Time Act, employers may claim a limited refundable employment tax credit equal to payments made to employees for E-FMLA leave, subject to a maximum per employee of $200 for each day of qualifying leave up to a $10,000 per employee for the year. Also like the credit for Emergency Paid Sick Time benefits, those amounts are increased by the amount of nontaxable health insurance premiums paid by the employer for employees who are out on E-FMLA Leave, for the days of leave, and further increased by the amount of Medicare tax owed by the employer with respect to the E-FMLA leave payments. The employer’s total available credit amount is also added to its income for the year. Unlike the credit for Paid Sick Time, however, there is already a general business credit available to certain employers who provide paid FMLA leave, and the new E-FMLA credit is not allowed with respect to any wages for which the general business credit is allowed (that is, “double dipping” is not permitted).

Effective and Sunset Dates
These amendments take effect no later than 15 days after the date the law is enacted and sunset at the end of the year.

© 2020 FordHarrison LLP

John G. Kruchko is a partner with the Labor & Employment Law First of FordHarrison LLP in Tysons Corner, VA; Jacquelyn L. Thompson is a partner in the firm’s Tysons Corner, VA and Washington, DC offices. Rachel Ullrich, a partner in the firm’s Dallas, TX office, Sarah Wimberly, a partner in the firm’s Atlanta, GA office, and Jeffrey Ashendorf, a counsel in the firm’s Atlanta, GA office, prepared an original version of this article. For more information, please contact Mr. Kruchko or Ms. Thompson at (703)734-0554 or by email at jkruchko@fordharrison.com or jthompson@fordharrison.com. This article is published for general information purposed and does not constitute leagal advice.