On March 18, 2020, the President signed into law The Families First Coronavirus Response Act. This new federal law will provide employees with emergency paid family leave and paid sick leave related to COVID-19.
Q: What paid leave benefits are required under the new Families First Coronavirus Response Act?
A: Paid family leave and paid sick leave related to COVID-19.
Q: Who is subject to paying leave for employees under the new Families First Coronavirus Response Act?
A: Employers with fewer than 500 employees.
Q: Who is entitled to paid leave under the new Families First Coronavirus Response Act?
A: The paid family leave applies to employees who have worked for the employer for a minimum of 30 days.
The paid sick leave applies to all employees (regardless of how long the employee has worked for the employer) immediately upon the effective date.
Q: When does this new law on paid leaves go into effect?
A: The new law for paid leave is effective April 2 and expires December 31, 2020.
Q: What are the covered reasons an employee may take emergency paid family and medical leave?
A: Covered employers must provide 12 weeks of leave for "the employee [who] 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."
"Public health emergency" means an emergency related to COVID-19. "School" includes elementary or secondary schools as defined in the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801). "Child care provider" means a provider who provides child care serves on a regular basis for compensation.
No change has been made to the definitions of "health care provider" and "son or daughter." They have the same meanings under the FMLA.
Q: What are employers required to pay an employee on leave under the emergency paid family and medical leave act?
The first 10 days of leave are unpaid. Employers may allow employees to substitute any other paid leave for accrued vacation, personal, medical or sick leave. Employers cannot mandate that employees substitute paid leave.
The next 10 weeks of leave are to be paid. Employees are entitled to be paid not less than 2/3 of their regular rate of pay for the number of hours the employee would otherwise normally be scheduled to work. "Regular rate of pay" is determined under section 7(e) of the FLSA (29 U.S.C. 207(e)).
Variable hour employees are entitled to the average number of hours worked over the past six- month period. Employees working for less than a six-month period, the employer shall use 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."
The paid leave described above is capped at $200 per day and capped at a total of $10,000.
Q: Is there any notice requirement for employees?
A: In cases where the need for leave under this law is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.
EMERGENCY PAID SICK LEAVE
Q: What does the paid sick leave act require for leave?
A: Full time employees are entitled to up to 80 hours of paid sick leave. Part time employees are entitled to be paid for the number of hours the employee works, on average, over a 2-week period. For part time employees with variable hours, employer shall average the number of hours worked over the past six- month period. Employees working for less than a six-month period, the employer shall use 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."
Q: What are the reasons an employee may take leave under the paid sick leave act?
A: Employees who are unable to work (or telework) due to the need for leave because:
- Employee subject to fed, state, local quarantine or isolation order related to covid-19
- Employee has been advised by health provider to self-quarantine due to concerns related to covid-19
- Employee experiencing symptoms of covid-19 and seeking medical diagnosis
- Employee caring for a person who is subject to fed, state, local quarantine or isolation order related to covid-19 or has been advised by health provider to self-quarantine due to concerns related to covid-19
- Employee caring for son or daughter of employee if school or place of care has been closed, or child care provider of son or daughter is unavailable due to covid-19 precautions
- Employee experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with Secretary of Treasury and Secretary of Labor.
Q: What do employers have to pay employees taking this emergency sick leave?
A: Employers must pay employees their regular rate of pay, or minimum wage, whichever is greater, for leave taken for reasons 1-3. Employers must pay employees at 2/3 their regular rate of pay, or minimum wage, whichever is greater, for leave taken for reasons 4-6. Employers must pay part time employees for the number of hours they would normally work during a two-week period.
Paid sick leave it capped at $511 per day or a total of $5,110 for reasons 1-3 and $200 per day or a total of $2,000 for reasons 4-6.
Q: What can employers require from employees who take this sick leave?
A: Employers may require workers to follow reasonable notice procedures to continue to receive the benefit after the first workday an employee receives pay under this law.
There is also no carry-over of sick leave to the next year and no financial obligation to pay employees upon termination for sick leave not used.
Q: What are employers prohibited from doing under the sick leave law?
A: Employers must not:
- require an employee to find a replacement to cover for the employee;
- require employee to use other employer provided paid leave first;
- discriminate or retaliate against employee taking this leave;
- retaliate against employee for making a complaint or participating in, testifying in, or seeking enforcement in a proceeding related to this action.
This law also does not preempt any federal, state or local law, existing employer policy, or collective bargaining.
Q: Are there any notice requirements under these laws?
A: The sick leave law requires employers to post and keep posted a notice in "conspicuous places on the premises of the employer where notices to employees are customarily posted."
Given the number of remote working employees, employers should also consider providing notice electronically and in other ways notices are customarily provided to employees. The Secretary of Labor is expected to issue a model notice and may give further guidance on this.
TAX CREDITS & POTENTIAL EXCEPTIONS
Q: What are the tax credits mentioned in the new paid leave laws?
A: There will be a credit against the tax imposed each calendar quarter in an amount equal to 100 percent of the qualified sick leave wages and 100 percent of the qualified family leave wages paid by the employer with respect to that calendar quarter.
The Secretary of the Treasury shall prescribe regulation and other guidance as may be necessary to carry out the acts.
Q: Are there any exceptions under these new paid leave laws?
A: The Secretary of Labor has the authority to exclude certain health care providers or companies with emergency responder workers may elect to exclude employees from this leave.
The Secretary of Labor has the authority to issue regulation that may provide some exceptions for small businesses with fewer than 50 employees "when the imposition of such requirements would jeopardize the viability of the business as a going concern." No such regulations are in place at this time.
For the full text of the new law: https://www.congress.gov/bill/116th-congress/house-bill/6201
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