Covid-19

Covid-19

Understanding the Families First Coronavirus Response Act

The Families First Coronavirus Response Act was signed into law and became effective as of April 2nd, 2020. Since employment laws can sometimes be complicated, it’s important to understand how the new act affects your rights as an employee or your obligations as an employer.

Expanded Coverage and Eligibility for paid and unpaid leave under the Family Medical Leave Act (“FMLA”)

The Corona Virus Response Act (“CVRA”) significantly expands FMLA on a temporary basis. Under the newly enacted CVRA, under certain Covid-19 related situations, FMLA has been expanded to cover employees whose employer employs fewer than 500 employees and more than 5. It also lowers the eligibility requirement such that any employee who has worked for the employer for at least 30 days prior to the designated leave may be eligible to receive paid leave. As a result, thousands of employers not previously subject to the FMLA may be required to provide job-protected leave to employees for a COVID-19 coronavirus-designated reason. However, the CVRA also includes language allowing the Secretary of Labor to exempt small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business.

Who’s eligible for emergency paid leave?

Paid leave will have to provide employees who cannot work or telework with paid sick time off if the employee is: (i) an employee subject to a coronavirus quarantine or isolation order; (ii) an employee who has been advised by a health care provider to self-quarantine due to coronavirus concerns; (iii) an employee who is experiencing symptoms of coronavirus and is seeking a medical diagnosis; (iv) an employee caring for an individual described in (i) or (ii) above; (v) an employee caring for a child whose school or place of care is closed, or the child care provider of the child is unavailable, due to coronavirus precautions; or (vi) an employee who is experiencing any other substantially similar condition specified by HHS in consultation with the Treasury and Labor Departments.

How much leave is allowed?

Full-time employees are to receive 80 hours of sick leave, and part-time workers are granted leave equivalent to their average hours worked in a two-week period, with the sick leave in either instance being available for immediate use regardless of the employee’s tenure at the employer.

How much can a qualifying employee on emergency medical leave be paid under the CVRA

Workers taking leave for themselves will have to be paid at least their normal wage or the applicable federal, state, or local minimum wage, whichever is greater. Workers taking time off to care for family members must be paid at two-thirds of the foregoing rate. Sick leave is capped at $511 per day and $5,110 in the aggregate for leave taken to care for yourself and capped at $200 per day and $2,000 in the aggregate for leave taken to take care of another.

Emergency Expansion of Family Medical Leave to Provide Benefits to Employees Whose Child’s School or Place of Care Has Closed

The Families First Coronavirus Response Act also includes the Emergency Family and Medical Leave Expansion Act (“FMLEA”) which provides eligible employees whose child’s school or place of care has closed due to the COVID-19 public health emergency with a new federal source of paid leave.

Under normal circumstances, the Family and Medical Leave Act applies only to employers with 50 or more employees, applies only to employees who have worked for at least 12 months (not necessarily consecutively) and who had worked at least 1,250 hours during that preceding 12 months, and provides unpaid leave for designated reasons, such as the employees own serious health condition, to care for a family member with a serious health condition, or to care for a newborn infant or an adopted child or foster child placed with the employee. On a temporary basis, the Emergency FMLA Expansion Act amends the FMLA and creates a new leave entitlement. For purposes of the new entitlement only, the FMLEA expands the definition of a covered employee to include all employees who have worked for covered employers (i.e., those with less than 500 employees) for at least 30 days.  Again, the Secretary of Labor has the authority to exempt from the Emergency FMLA Expansion Act certain health care providers and emergency responders, and small businesses with fewer than 50 employees if the Act would jeopardize a business’s viability.

Who Qualifies Emergency Expansion of Family Medical Leave?

An eligible employee may take up to 12 weeks of leave if he/she is unable to work (including telework) because the employee must care for his or her child who is under 18 years of age and whose school or place of care has closed due to the COVID-19 public health emergency.

The initial 10 days of leave are unpaid, but the employee may elect to use his/her accrued paid sick leave and/or accrued vacation during this otherwise unpaid period. After the initial 10-day period, an employee is entitled to receive from the employer two-thirds of his/her normal wages for the number of hours he/she would be regularly scheduled to work, up to a maximum of $200 per day and $10,000 in total.

Coming back to my job after my leave

For employers with 25 or more employees, an employee returning from expanded FMLA leave is entitled to reinstatement to the same or an equivalent position. For employers with fewer than 25 employees, an employee returning from expanded FMLA leave is entitled to reinstatement to the position held by the employee when the leave commenced unless that position does not exist due to economic conditions or other changes in operating conditions caused by the public health emergency. In such a case, the employer must make reasonable efforts to restore the employee to an equivalent position, and if those efforts fail, make reasonable efforts for at least a year to contact the employee if an equivalent position becomes available.