Fast Facts for Employers Regarding the “Families First Coronavirus Response Act”

On March 18, 2020, the President Trump signed the “Families First Coronavirus Response Act” into law. The law becomes effective no later than 15 days after enactment. It is not clear when the law will actually go into effect, but that information should be forthcoming from the Department of Labor. It is safe to assume that all employers should implement these policies by April 1, 2020. Below is information regarding what employers should be immediately aware of. Shumaker Williams, P.C. is a full-service law firm with experienced labor and employment lawyers that can assist any sized businesses implement these policies.

Emergency Family Medical Leave Expansion Act

· Which employers are covered?

· Covered employers with fewer than 500 employees and government entities.

· This is a significant expansion of the law, which previously only included “covered employers” with 50 or more employees within a 75 mile radius.

· Which employees are eligible?

· All employees who have been employed for at least 30 calendar days by the employer with respect to whom leave is requested and are unable to work or telework due to their minor child’s school or place of child care being closed.

· Importantly, the expansion only requires paid leave for employees who need leave as a result of a “qualifying need related to a public health emergency.”

· Qualifying need related to a public health emergency ,With respect to leave, this means the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. The term ‘public health emergency’ means an emergency with respect to COVID–19 declared by a Federal, State, or local authority.

· How much leave is available?

· 12 weeks

· Is the expanded FMLA leave paid or unpaid?

· The first 10 days of leave can be unpaid (but may be substituted with other available paid leave), and then subsequent absences are paid at 2/3 the employee’s regular rate, capped at $200/day and $10,000 in aggregate.

· Does the emergency FMLA leave include job protection?

· Yes. The employee on emergency FMLA leave must be restored to his or her prior position, however, this does not apply if the employer employs less than 25 employees and the position held by the employee no longer exists due to economic conditions and other changes in the employer’s operations caused by the coronavirus pandemic and the employer makes reasonable efforts to restore the employee to an equivalent position during the 1 year period following the date the employee no longer needs to take the leave or 12 weeks after the commencement of the paid leave whichever is earlier.

Emergency Paid Sick Leave Act

· Which employers are covered?

· In the case of a private entity or individual, employs fewer than 500 employees

· In the case of a public agency or any other entity that is not a private entity or individual, employs 1 or more employees;

· What are the grounds for which leave may be taken:

The employee is unable to work or to telework because:

· the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

· the employee has been advised by a health care provider to self-quarantine because of COVID-19;

· the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;

· the employee is caring for an individual subject or advised to quarantine or isolation;

· the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or

· the 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.

· How much leave is available?

· For full time employees, 80 hours is required. For part time employees, a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.

· Paid sick time ends beginning on the next scheduled work shift immediately following termination of the need for sick time.

· How much pay is available?

· For time employees pay is calculated based on the employee’s normal pay based on the number of hours the employee would otherwise be normally scheduled to work. For part time employees,

· a number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes the paid sick time, including hours for which the employee took leave of any type.

· If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

· In no event shall such paid sick time exceed—$511 per day and $5,110 in the aggregate.

· Employees taking leave to care for family members must be paid at least two-thirds of their regular with a cap of $200 per day and $2,000 in the aggregate.

· When may an employee start using sick leave?

· Sick leave is available for immediate use regardless of how long the employee has been employed by the employer.

· An employer may not condition leave on a requirement that an employee search for or find a replacement for their absence and may not require that other paid sick leave be used before accessing the paid sick leave prescribed in this Bill.

· What happens if an employer does not comply with the law?

· The employer will be considered to have failed to pay minimum wage under the Fair Labor Standards Act and will be subject to penalties under the Act.

· What are some other requirements of the Emergency Paid Sick Leave Act?

· Paid sick leave does not carry over year to year and does not get paid out on termination of employment.

· Employers may not require the employee to use other paid leave before using paid sick leave provided under the law. This is significant in that employers cannot dock leave time available under PTO or sick leave or charge an employee with the use of Sick and Safe Leave under Maryland’s Healthy Working Families Act.

· Employers are prohibited from requiring workers to find replacements to cover their hours during time off; or discharging or discriminating against workers for requesting paid sick leave or filing a complaint against the employer related to paid sick leave.

Additional Implications:

· These laws exclude certain health care providers and emergency responders from the definition of eligible employee under section 110(a)(1)(A); and

· Small businesses with fewer than 50 employees from the requirements of the law when the imposition of such requirements would jeopardize the viability of the business as a going concern.

· Employers required to provide emergency paid sick leave or expanded family medical leave may apply for certain tax credits for those payments.

· Employer is allowed as a credit against the tax imposed by section 3111(a) or 3221(a) of the Internal Revenue Code of 1986 for each calendar quarter an amount equal to 100 percent of the qualified sick leave wages paid by such employer with respect to such calendar quarter.

· The amount of qualified sick leave wages taken into account under subsection (a) with respect to any individual shall not exceed $200 ($511 in the case of any day any portion of which is paid sick time described in paragraph (1), (2), or (3) of section 5102(a) of the Emergency Paid Sick Leave Act) for any day (or portion thereof) for which the individual is paid qualified sick leave wages.

· The aggregate number of days taken into account under paragraph (1) for any calendar quarter shall not exceed the excess (if any) of—

· 10, over

· the aggregate number of days so taken into account for all preceding calendar quarters.

· Neither the emergency paid sick leave act nor the emergency family medical leave expansion act provide paid leave to an employee who is laid off. However, the Secretary of Labor shall assist States in establishing, implementing, and improving the employer awareness of short-time compensation programs to help avert layoffs, including by providing technical assistance and guidance.

· The bill also provides for the Secretary of Labor to make emergency grants to states in the unemployment insurance trust fund using a prescribed formula.

· State unemployment insurance laws still apply for unemployment benefits

· Both laws expire on December 31, 2020.

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