On March 18, the Families First Coronavirus Response Act became law. It takes effect on April 2 and includes a wide variety of provisions that will impact employers. Below is our summary of key parts of the law. 

Emergency Paid Sick Leave

• Covered employers: private entities that employ fewer than 500 employees and various public employers.
   
  • Permits an employer of an employee who is a “health care provider” or “emergency responder” to exclude such employees. Those terms are not defined in the law.
     
  • Also permits the Department of Labor to issue regulations to exempt small businesses with fewer than 50 employees from these requirements when the imposition of such requirements “would jeopardize the viability of the business as a going concern.” However, the law itself does not define such an exemption. 
     
• Employers shall provide paid sick time for the following:
   
  • Government quarantine related to COVID-19.
     
  • Self-quarantine advised by health care provider.
     
  • To obtain diagnosis if experiencing symptoms of COVID-19. 
     
  • Caring for an individual subject to quarantine or self-quarantine.
     
  • Caring for son or daughter whose school or daycare has closed due to COVID-19.
     
  • Experiencing any other substantially similar condition specified by the secretary of health and human services in consultation with the secretary of the treasury and secretary of labor.
     
• Duration:
   
  • Full-time employees: 80 hours.
     
  • Part-time employees: number of hours that such employee works, on average, over a two-week period.
     
  • No carryover from one year to the next.
     
  • Termination of paid sick time: ceases beginning with the employee’s next scheduled work shift immediately following the termination of the need for paid sick time.
     
• Pay Rates
   
  • Full rate of pay, capped at $511 per day and $5,110 in the aggregate, if leave is used for (1) government quarantine, (2) quarantine advised by health care provider, or (3) experiencing symptoms of COVID-19 and seeking a medical diagnosis. 
     
  • Two-thirds rate of pay, capped at $200 per day and $2,000 in the aggregate if leave used for (4) caring for individual quarantined by government or health care provider, (5) caring for child after school closes, or (6) experiencing substantially similar condition specified by DHHS. 
     
• Use of Paid Sick Leave:
   
  • Available for immediate use.
     
  • Emergency paid sick leave is in addition to leave already offered by employers (including subject to state or local requirements).
     
  • Employee may first use paid sick time under this law. Employer may not require an employee to use other paid leave before using paid sick time under this law.
     
  • Nothing prohibits employers from changing their leave programs after the law goes into effect.
     
  • Includes anti-retaliation provision.

Family and Medical Leave Act Expansion

• Amends the FMLA to provide for up to 12 weeks of leave in a 12-month period for a ”qualifying need related to a public health emergency,” which means an employee is unable to work (or telework) due to the need to care for a son or daughter under age 18 if school or place of care has been closed, or child care provider is unavailable, due to public health emergency.
   
• Private employer threshold: employers with fewer than 500 employees.

  • Department of Labor may issue regulations to exclude “health care providers” and “emergency responders” from the definition of eligible employees. However, those terms are not defined in the law.

  • Permits the Department of Labor to issue regulations to exempt small businesses with fewer than 50 employees from these requirements when the imposition of such requirements “would jeopardize the viability of the business as a going concern.” However, the law itself does not define such an exemption.
     
• “Eligible employee” means any employee who has been employed for at least 30 calendar days.
   
• Relationship to paid leave:
   
  • First 10 days may consist of unpaid leave.
     
  • Employee may elect to substitute accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. 
     
  • Employer shall provide paid leave for each day of leave after 10 days at not less than two-thirds of employee’s regular rate of pay capped at $200 per day and $10,000 in the aggregate.

Other Highlights

• Tax credits are available to employers for payments they make related to the changes in FMLA and paid sick leave. These credits expire on December 31, 2020.
   
• Notice: within seven days of the law’s enactment, the Department of Labor will release a notice that all employers are required to post in their workplaces.