Families First Coronavirus Response Act Summary

On March 18, what is known as the “Families First Coronavirus Response Act” was signed into law and will become effective in the next fifteen (15) days. The “Families First Coronavirus Response Act” contains a number of provisions to address the pandemic caused by Covid-19, including provisions expanding leave under the Family and Medical Leave Act (FMLA) and provisions for emergency paid sick leave.

“Emergency Family and Medical Leave Expansion Act”
The expansion of FMLA is titled the “Emergency Family and Medical Leave Expansion Act” (“Expanded FMLA”). The Expanded FMLA provides employees of a covered employer (which is defined as private sector employers with less than 500 employees and certain public-sector employers) up to twelve (12) weeks of FMLA leave for a “qualifying need related to a public health emergency,” provided the employee has been employed by that employer for thirty (30) calendar days. “Qualifying need related to a public health emergency” is defined as when an employee is unable to work (or telecommute) because of the need to care for that employee’s minor child if that child’s school or child care provider is closed or otherwise unavailable due to the Covid-19 pandemic.

The initial ten (10) days of leave under the “Emergency Family and Medical Leave Expansion Act” is be unpaid unless an employee chooses to use accrued leave to cover those ten (10) days. After the initial ten (10) days are over, an employer is required to provide paid leave for each day of leave taken – up to the twelve (12) week period. However, paid leave is capped at two-thirds of an employee’s regular pay or $200 per day ($10,000 in the aggregate), whichever is lower. The “Emergency Family and Medical Leave Expansion Act” provides a formula to calculate two-thirds of an employee’s regular pay.

Under the Expanded FMLA, the Secretary of Labor has the authority to issue regulations excluding certain health care providers and emergency responders and designating them ineligible for the Expanded FMLA leave. In addition the Secretary of Labor was authorized to exempt small businesses (defined as a business with less than fifty (50) employees) from providing the Expanded FMLA leave if the employer can show that providing the leave would “jeopardize the viability of the business as a going concern.” It remains to be seen whether the Secretary of Labor drafts regulations providing for those exemptions and what those regulations would look like.

Notably, if an employee uses FMLA leave the employer must return that employee to the same, or an equivalent position, when the employee returns to work. However if an employee uses Expanded FMLA leave, an exception to this requirement is provided if the employer has less than twenty-five (25) employees and cannot return the employee to the same, or an equivalent position, due to economic conditions or operational changes caused by the Covid-19 pandemic. If an employer with less than twenty-five employees wants to take advantage of this exemption, certain additional conditions must be met.

“Emergency Paid Sick Leave Act”
Under the “Emergency Paid Sick Leave Act” covered employers (which are defined as private sector employers with less than 500 employees and certain public-sector employers) are required to provide an employee paid sick time under certain circumstances. If an employee is unable to work (or telecommute) because of certain circumstances related to the Covid-19 pandemic, including if the employee is subject to a quarantine order, has been advised to self-quarantine or is experiencing symptoms of Covid-19 and seeking a medical diagnosis paid sick leave is required to be provided. Paid sick leave taken for these reasons is limited to $511 per day (or $5,110 in the aggregate).

Paid sick time is also required if the employee is caring for an individual who has been ordered to quarantine or advised to self-quarantine or if the employee is caring for a minor child whose school or place of care is closed or otherwise unavailable due to Covid-19 precautions. Finally, paid sick leave is available if an employee is experiencing “substantially similar conditions as specified by the Secretary of Health and Human Services in consultation with the Secretaries of Labor and Treasury.” Paid sick leave taken for these reasons is capped at $200 per day (or $2,000 in the aggregate).

Paid sick leave is immediately available, there is no calendar day requirement as there is with the Expanded FMLA. However, an employer can choose to exclude health care providers or emergency responders from the ability to obtain paid sick leave under this act. Full time employees are entitled to eighty (80) hours of paid sick leave and part time employees are eligible for an amount based upon a calculation detailed in the act. An employee cannot be terminated for taking paid sick leave provided in this act.

Similar to the Expanded FMLA, the Secretary of Labor has the authority to issue regulations to exempt small business with less than fifty (50) employees if the employer can show that providing the leave would “jeopardize the viability of the business as a going concern,” among other things.

An employer is prohibited from retaliating against an employee who takes paid sick leave as provided. Further, the failure to pay sick leave as detailed above is to be treated as a failure to pay minimum wages and a violation of the Fair Labor Standards Act.

Final Thoughts
The attorneys at Halloran Sage are prepared to assist and provide guidance to employers with questions on their legal obligations and how to respond to the myriad of employment issues that will undoubtedly arise during this difficult time. Congress is said to be considering additional legislation in response to the Covid-19 pandemic. We will continue to monitor this rapidly developing situation and provide updates on employment law issues associated with Covid-19 as they arise.

Helpful Links:
http://disasterloan.sba.gov
http://portal.ct.gov/coronavirus

Kevin J. Greene
Duncan J. Forsyth
Jennifer A. Pedevillano

Read more