On March 18th, President Trump signed the Families First Coronavirus Response Act. The Act includes the Emergency Family Medical Leave Act (FMLA) Expansion Act and the Emergency Paid Sick Leave Act which will have a significant impact on employers of fewer than 500 employees. The Emergency FMLA Expansion Act and the Emergency Paid Sick Leave Act will take effect on April 2, 2020 and expire on December 31, 2020.
1. Temporary Amendments to the FMLA include:
Eligibility: Under normal circumstances, the FMLA applies only to employers with 50 or more employees, applies only to employees who have worked for at least 12 months and who have 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 Act applies to all employers with fewer than 500 employees and permits employees who have worked for an employer for at least 30 days to take leave.
Qualifying Reason for Taking Expanded FMLA Leave: An eligible employee may take up to 12 weeks of leave if he/she is unable to work (or to telework) because the employee must care for his/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.
Ten Days Unpaid Leave: 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.
Paid Leave Thereafter: After the initial 10-day period, an employee is entitled to receive paid leave from their employer. The amount of paid leave is two-thirds of an employee’s 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.
Use: All eligible employees may apply for expanded FMLA leave beginning on April 2. If the necessity for leave is foreseeable, the employee must provide the employer with “such notice of leave as is practicable.”
Restoration to Position: 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 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.
Exemptions: 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.
2. Emergency Paid Sick Leave Act
Eligibility: All employees of employers with fewer than 500 employees are eligible for paid sick leave under the Emergency Paid Sick Leave Act.
Qualifying Reasons for Taking Paid Sick Leave: An employee may take paid sick leave if he/she is unable to work (or to telework) because:
1. The employee is subject to a federal, state, or local quarantine or isolation due to COVID-19;
2. A health care provider advised the employee to self-quarantine due to concerns related to COVID-19;
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. The employee is caring for an individual (not limited to family members) who is either subject to a federal, state, or local quarantine or isolation due to COVID-19 or has been advised to self-quarantine due to concerns related to COVID-19;
5. The employee is caring for the employee’s child whose school has been closed or place of care is unavailable due to COVID-19 precautions; or
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretaries of Treasury and Labor. The precise meaning of this sixth reason will be clarified by the Secretary of Health and Human Services.
Benefit: Full-time employees receive 80 hours of paid sick leave. Part-time employees receive the equivalent of the number of hours they would work, on average, during a two-week period. There is a separate method for calculating the benefit for part-time employees whose schedules vary widely from week to week. The Secretary of Labor is required to issue guidelines to assist employers in calculating leave benefits by April 2nd.
Use: All eligible employees may use paid sick time beginning on April 2nd. Employers may not require eligible employees to first use other paid leave provided by the employer before using paid sick leave under the Act, so this leave is in addition to any paid sick leave or PTO currently provided by employers. Employers may require employees to follow reasonable notice procedures to continue receiving such paid sick time after the first workday an employee receives paid sick time under this Act. In other words, employers may not require employees to provide advance notice prior to the first workday on which the employee takes paid sick leave under the Act.
Tax Credits: Employers can seek reimbursement for the wages paid to employees taking emergency paid sick leave through tax credits applicable to the employer’s portion of Social Security taxes.
3. State Disability Insurance and Paid Family Leave
Employees who are sick or quarantined can apply for temporary California state disability insurance which provides partial wage replacement. Employees need medical certification of COVID-19 illness or exposure to qualify. The usual one week waiting period is being waived.
Employees who cannot work because they need to care for an ill or quarantined family member can apply for California Paid Family Leave (six weeks maximum) which also provides partial wage replacement. Employees need medical certification of family member COVID-19 illness or exposure to qualify.
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