On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (FFCRA) as an emergency response to the 2019 novel coronavirus (COVID-19) pandemic. Among other relief, the law requires many employers to provide paid sick leave and family and medical leave for their employees and offers tax credits to offset the costs to covered employers.
On March 14, 2020, as an emergency response to the spread of the 2019 novel coronavirus (COVID-19), the US House of Representatives passed the Families First Coronavirus Response Act (P.L. 116-127, 2020 H.R. 6021), as amended on March 16, 2020 by resolution before enrollment by H. Res. 904 (166 Cong. Rec. H1698-01)) (FFCRA). On March 18, 2020, the US Senate passed the FFCRA without further amendment and President Trump signed it into law that day.
Among other things, the FFCRA includes two paid leave provisions offering relief to many employees needing time away from work for reasons related to COVID-19:
The Emergency Paid Sick Leave Act (H.R. 6201, Division E (§§ 5105 to 5111)).
The Emergency Family and Medical Leave Expansion Act (HR. 6201, Division C (§§ 3101 to 3106)).
Both laws become effective on April 1, 2020 (per DOL FAQs) and expire on December 31, 2020. For more information on the paid leave requirements under the FFCRA, see DOL: CCRFA: Employer Paid Leave Requirements.
The Emergency Paid Sick Leave Act (Emergency PSL Act) covers private employers with fewer than 500 employees and all government employers. However, the Secretary of Labor is authorized to issue regulations for good cause that:
Exempt businesses with fewer than 50 employees from providing emergency paid sick leave for child care purposes if providing leave would jeopardize the viability of the business as a going concern.
Exclude certain health care providers (as defined in the FMLA) and emergency responders from the definition of covered employee or allow their employers to opt out of the paid sick leave requirements.
Leave Amount and Usage
Covered full-time employees are entitled to 80 hours of paid leave (and more if the leave is for child care that qualifies for emergency paid family leave (see Emergency Family and Medical Leave Expansion Act). Part-time employees are entitled to the average number of hours the employee works during a two-week period.
Covered employees are entitled to paid leave for specified purposes related to COVID-19. Employers must provide paid sick leave if the employee is unable to work or telework because the employee:
Is under a federal, state, or local quarantine or isolation order related to COVID-19.
Has been advised by a health care provider to self-quarantine because of COVID-19 concerns.
Is experiencing COVID-19 symptoms and seeking a medical diagnosis.
Is caring for an individual subject to a quarantine or isolation order or advised to self-quarantine because of COVID-19 concerns.
Is caring for a son or daughter (as defined in the FMLA) where, due to COVID-19 precautions, the child's:
school or place of care has been closed; or
child care provider is unavailable.
Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Leave is available for immediate use, regardless of how long the individual has been employed by the employer. Employers cannot require an employee to:
Use other available paid or unpaid leave before allowing paid leave available under this emergency provision.
Find a replacement to cover the employee's hours or shift before allowing paid leave.
After the first use of leave, employers may require the employee to follow reasonable notice procedures in order to continue receiving paid sick time. Unused leave cannot be carried over to the following year.
Payment for Leave
Leave is paid based on the employee's regular rate of pay, depending on the reason for leave. Leave is paid at 100% of the employee's regular rate and capped at $511 per day and $5,110 in total for an employee who is:
Quarantined under a government order or advice of health care provider
Experiencing COVID-19 symptoms and seeking a medical diagnosis.
Leave is paid at two-thirds of the employee's regular rate of pay and capped at $200 per day and $2,000 in total (not including additional emergency paid family leave) for leave needed:
To care for another individual under quarantine or a child under 18 whose school or child care provider is closed or unavailable because of COVID-19; or
If the employee is experiencing a substantially similar condition.
Private employers can claim a tax credit against the employer's portion of Social Security taxes for the emergency paid sick leave wages paid to employees, subject to the same per-employee caps depending on the reason for the leave.
Notice, Remedies, and Other Provisions
Employers must post a notice regarding employees' rights under the emergency law (to be made available by the Secretary of Labor by March 25, 2020). The law prohibits retaliation against employees who use emergency paid sick leave or complain about violations of the Emergency PSL Act.
The law expressly states that it does not diminish any employee rights under an existing law, employer policy, or CBA. While this suggests that employers with existing paid leave policies must provide leave under the Emergency PSL Act in addition to leave already provided, explicit language to this effect was deleted from a prior version of the bill.
The Secretary of Labor is expected to issue regulations in April 2020.
The Emergency Family and Medical Leave Expansion Act (Emergency FMLA) expands the FMLA to provide paid and other protected leave to covered employees with a qualifying need related to a public health emergency regarding COVID-19 declared by a federal, state, or local authority. The Emergency FMLA broadens coverage of the FMLA in several key respects.
Scope of Coverage
The new law expands the definition of employer regarding public health emergency leave to include all private employers with fewer than 500 employees, while the FMLA ordinarily only covers employers with 50 or more employees. However, for employers with fewer than 50 employees:
The Secretary of Labor is authorized for good cause to exempt them from providing public health emergency leave if it would jeopardize the viability of the business as a going concern.
There is no private right of action for damages or attorneys' fees available against those employers that do not meet the definition of covered employer under the FMLA (though the Secretary of Labor retains all available enforcement rights and remedies under the FMLA) (H.R. 6201, § 3104).
The Emergency FMLA also expands coverage by including employees who have been employed by the employer for at least 30 days. Under the FMLA, covered employees must have been employed for at least 12 months by the employer and worked for at least 1,250 hours during the previous 12 months.
However, employers that employ health care providers and emergency responders may elect to exclude those employees from the public health emergency leave requirements (H.R. 6201, § 3105).
Leave Use and Payment
The Emergency FMLA amends the FMLA to create a new category of protected leave for employees with a "qualifying need related to a public health emergency" (H.R. 6201, § 3102(b), adding a new section (F) to 29 U.S.C. § 2612(a)(1)). A qualifying need under this provision means the employee cannot work or telework due to the need to care for a son or daughter under 18 years of age if, because of a public health emergency regarding COVID-19, the child's:
School or place or care has been closed.
Child care provider is unavailable.
Under the Emergency FMLA, the first ten days of leave necessitated by a public health emergency related to COVID-19 is unpaid. An employee may elect to substitute accrued paid leave during that time period under the leave provisions of the FMLA (29 U.S.C. § 2612(d)(2)(A) (allowing an employer to require an employee to use other accrued paid leave during FMLA leave)).
Leave after the first ten days must be paid at a rate at least two-thirds the employee's regular rate of pay based on the employee's regular schedule. For each employee, paid leave cannot exceed:
$200 per day.
$10,000 in total.
Private employers can claim a tax credit against payroll taxes for the Emergency FMLA wages paid to employees, subject to the employee caps on total paid leave (H.R. 6201, § 7003).
Because the Emergency FMLA adds another category of qualifying need to the FMLA, the total amount of available leave is the same as under the FMLA (12 weeks in a 12-month period). Under the Emergency FMLA, the first two weeks are unpaid and the remaining ten weeks are paid leave. Employees must provide notice to their employers as soon as practicable when the need for leave is foreseeable.
Restoration Rights
Employees returning from FMLA leave generally have the right to return to the same or an equivalent position. The Emergency FMLA contains an exception to the job restoration right for employers with fewer than 25 employees when their employees take public health emergency leave if all the following conditions are met:
The employee's position no longer exists because of economic or other operating conditions affecting employment and caused by a public health emergency.
The employer makes reasonable efforts to return the employee to an equivalent position.
If unable to return the employee to an equivalent position, the employer makes reasonable efforts to contact the employee about available equivalent positions for one year beginning on the earlier of: