On March 18, 2020, President Trump signed the “Families First Coronavirus Response Act,” (“FFCRA”) which, among other things, significantly expands the Family and Medical Leave Act (“FMLA”) through December 31, 2020, as a response to the Coronavirus pandemic, and creates a paid sick leave entitlement. These provisions will take effect 15 days after the date of enactment.

The FFCRA includes the aptly-titled “Emergency Family and Medical Leave Expansion Act” which will require employers with fewer than 500 employees to provide up to twelve weeks of job-protected leave to qualifying employees. The first ten days of the leave are unpaid, although employees may choose to use accrued paid time off during that period. During the remainder of the leave, an employee must be paid two-thirds of his or her regular rate of pay for the number of hours that he or she usually would be scheduled to work, up to $200 per day and $10,000 for the entire period of the leave. After the conclusion of the emergency family leave of absence, employers are generally obligated to restore an employee to his or her prior position or an equivalent position.

Additionally, the FFCRA includes emergency paid sick leave entitlements under the “Emergency Paid Sick Leave Act.” Employers with fewer than 500 employees will be required to provide paid sick leave to any employee, regardless of their length of employment with the employer, who is unable to work, or unable to work remotely, under specific conditions such as when the employee is in quarantine or isolation, has symptoms of COVID-19, is caring for another person who is in quarantine or isolation, is caring for a child because of school and/or care setting closures, or is experiencing substantially similar conditions. The circumstances when paid leave must be provided are more explicitly detailed below. Full-time employees must be provided with 80 hours of paid sick leave. Part-time employees must be provided with an amount of paid sick leave that is equal to the average number of hours that the employee works in a two-week period. The amount of pay will depend on the reasons for leave.

Employers will be provided with tax credits for paid sick leave and/or paid emergency family leave benefits.

In summary, the new protections provide for the following:

Expands FMLA Coverage and Eligibility:

• The Act applies to employers of fewer than 500 employees. Currently, the FMLA applies to employers of 50 or more employees, but the Act will expand the requirement to smaller employers. Employers with less than 50 employees may secure an exemption if compliance would compromise the viability of the business. Moreover, the Department of Labor may exclude health care providers and first responders from the designation of “eligible employee[s].”
• Employees will be eligible for this emergency FMLA leave if they have been employed for at least 30 days, which is much shorter than the current requirement for FMLA leave entitlement which only applies to employees who have worked with the employer for at least 1 year and 1,250 hours of work within the prior 12 months.

Reasons for FMLA Leave and Entitlement to Paid FMLA Leave:

• Emergency FMLA leave is available if the employee is not able to work or is unable to work remotely due to a need to care for their minor son or daughter whose school or place of care has been closed or if their child care provider is unavailable due to a COVID-19 declared public health emergency.
• The first 10 days of the Emergency FMLA leave may be unpaid, although an employee may elect to use any accrued paid leave during that time frame.
• After the first 10 days, the employer must pay full-time employees two-thirds of the employee’s regular rate for the number of hours the employee would have been scheduled.
• Part-time or irregularly scheduled employees are entitled to an average number of hours the employee worked over the preceding six months.
• The paid leave need not exceed $200 per day and $10,000 in the aggregate per employee.

Right to Restoration to Position:

• As with the FMLA, employers with 25 or more employees are required to return the employee who has taken emergency FMLA leave to the same or an equivalent position once they return to work.
• Employers with less than 25 employees are excluded from this requirement if the employee’s position has been eliminated as a result of the circumstances surrounding the public health emergency. The employer must still make reasonable attempts to return the employee to work for up to one year following the employee’s leave.

Additional Emergency Paid Sick Leave

• Emergency paid sick leave must be provided by employers with fewer than 500 employees, and must be made available to all employees regardless of their length of service.
• Full-time employees are entitled to 80 hours of paid sick leave at their regular rate (limited to $511 per day up to $5,110 total pay) or two-thirds of their regular rate of pay if the leave is for the fourth, fifth, and sixth reasons for the sick leave, as listed below (with a limitation of pay for these reasons of up to $200 per day and $2,000 maximum). For part-time or irregularly scheduled employees, the rate of pay is determined based on the employee’s average wage over the preceding 6 months, or if they have not worked for the employer for at least 6 months, what they would normally be scheduled to work over a two-week period.
• Employees will be entitled to use the paid sick leave provided for by this new law for any of the following reasons: (1) local, state, or federal quarantine due to COVID-19; (2) if the employee is advised by a health care provider to self-quarantine due to COVID-19; (3) if the employee is experiencing COVID-19 symptoms and is seeking a diagnosis; (4) if the employee is caring for an individual who is subject to a COVID-19 quarantine or who has been advised by a healthcare provider to self-quarantine while seeking a diagnosis; (5) if the employee is caring for a son or daughter because their school or place of care has been closed or their child care provider is unavailable due to COVID-19 precautions; or (6) if the employee is experiencing any substantially similar condition that the Secretary of Health and Human Services specifies.

For more information on this topic or other labor law matters, please contact Chris M. Mason, Daniel Peabody, or another member of the Jennings Strouss Labor and Employment Practice.
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Chris M. Mason | Read Bio