Families First Coronavirus Response Act

Covered Claims

A “qualifying need related to a public health emergency” is limited to when an employee is unable to work (or telework) due to a need for leave to care for a child (under 18) of such employee if the child’s school or place of care has been closed or is unavailable due to a public health emergency.

Payments

A leave lasting longer than 14 days must be paid at two-thirds an employee’s regular rate of pay, as follows:

• The first 14 days of leave may be unpaid. During this unpaid 10 day period, an employee may elect, but cannot be required, to substitute any accrued vacation leave, personal leave, or medical or sick leave for the unpaid leave.
• After 14 days of leave, the employer must provide paid leave. Paid leave must be not less than two-thirds an employee’s regular rate of pay for the number of hours the employee would otherwise be normally scheduled to work (capped at $200/day or $10,000 in the aggregate).  Paid leave must continue until the qualifying condition no longer exists, or twelve weeks of leave have been taken.

Job Protection

Employers must restore employees to their prior positions (or an equivalent position) upon the expiration of the leave, subject to limited exceptions for employers with less than 25 employees.

No Retaliation

An employer may not discharge, discipline or an in any other manner discriminate against employees for taking the expanded FMLA leave or for filing any complaints, instituting proceedings or testifying related to the expanded FMLA leave.

Notice

The Secretary of Labor will provide a model notice that must be posted at the premises of the employer where notices to employees are customarily posted.

Effective Date

Not later than April 2, 2020.

Expiration Date

December 31, 2020.

Penalties for Violations

A non-complying employer will be subject to penalties including lost wages and benefits, an equivalent amount as liquidated damages, and attorneys’ fees and costs. Equitable remedies such as reinstatement are also available.

Emergency Paid Sick Leave Act

Covered Employers

Employers with fewer than 500 employees, and covered public employers to provide paid sick time to an employee who is unable to work (or telework).  The Act allows the Secretary of Labor the authority to issue regulations which exclude employers with fewer than 50 employees if the leave would jeopardize the viability of the business, health care providers and emergency responders.

Covered Claims:

1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. The employee is caring for an individual who is either (a) subject to a federal, state, or local quarantine or isolation order related to COVID-19 or (b) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
5. The employee is caring for a child of such employee if the school or place of care of the child has been closed, or the child care provider is unavailable, due to COVID-19 precautions;
6. The employee 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.

Unlike the above Emergency Family Medical Leave Expansion Act requirements, employees are immediately eligible for this leave.

Sick Leave

For full-time employees, 80 hours.  For part-time employees, emergency sick leave generally is calculated using the number of hours an employee works, on average, over a 2-week period.

No Carryover

Emergency paid sick time does not carry over from one year to the next.

No Payout at Termination

Paid sick time not used at the time of an employee’s termination, resignation, or retirement does not need to be paid out to the employee.

May be Used Before Other Paid Leave

Employers may not require an employee to use other paid leave provided by the employer before the employee uses this emergency paid sick time.

Pay Rate

Sick leave must be paid as follows:

• At the employee’s regular rate, subject to a maximum of $511 per day and $5,110 in the aggregate for qualifying conditions (1), (2), or (3) described above.
• At two-thirds the employee’s regular rate, subject to a maximum of $200 per day and $2,000 in the aggregate for qualifying conditions (4), (5), or (6) described above.
• The Secretary of Labor is expected to issue guidelines to assist in calculating rates of pay.

Prohibition

An employer may not require, as a condition of providing paid sick time under this Act, that the employee involved search for or find a replacement employee to cover the hours during which the employee is using paid sick time.

No Retaliation

An employer may not discharge, discipline or an in any other manner discriminate against employees for taking paid sick leave under the new law or for filing any complaints, instituting proceedings or testifying related to the law.

Notice

The Secretary of Labor will provide a model notice that must be posted at the premises of the employer where notices to employees are customarily posted.

Effective Date

Not later than April 2, 2020.

Expiration Date

December 31, 2020.

Penalties for Violations

A non-complying employer will be subject to penalties including lost wages, an equivalent amount as liquidated damages, and attorneys’ fees and costs.  Intentional violations may result in fines and imprisonment.

Employer Tax Credits

Subject to forthcoming Treasury Department regulations, 100% of the emergency leave wages provided pursuant to the Act may be reimbursed by payroll tax credits for private employers.

New EEOC Guidance on Employer Health Screenings

On March 18, 2020, the EEOC updated is guidance on employee health screenings providing specific guidance about questions an employer may ask potential and existing employees and temperature screenings in the workplace.

All guidance is subject to change due to developments in health practices and laws.

Please email or call your HMB Legal Counsel attorney with any questions about how these updates could impact your business.