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On March 18, 2020, the Senate passed a revised version of the Families First Coronavirus Response Act in order to address concerns related to the coronavirus emergency. The President is expected to sign the bill into law. Employers should take the time to understand the requirements under this new bill as the number of people and businesses impacted by the coronavirus (sometimes referred to as “COVID-19”) continues to grow.

Among other provisions, this Act will contain two paid leave provisions that will apply to most employers in this country, including small businesses with fewer than 50 employees. However, the Department of Labor has the authority to issue some regulations that may provide relief for small employers.

Emergency Paid Sick Leave Act

This bill sets forth emergency paid sick time requirements for sick time needs that are related to coronavirus. It applies to all public entities and to private entities that employ fewer than 500 employees.

Employers must provide full-time employees with 80 hours of emergency paid sick leave and part-time employees with the average number of hours they work over a 2-week period of emergency paid sick leave if the employee is unable to work or telework for any of the following reasons:

(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 subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

(5) The employee is caring for his/her child if the child’s school or place of care has been closed, or the child’s child care provider is unavailable, due to COVID-19 precautions;

(6) The employee is experiencing any other condition that is substantially similar to COVID-19 as specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Emergency sick time under this bill is available immediately, regardless of how long the employee has been employed. This leave is in addition to any existing paid time off or leave offered to employees and employers cannot require employees to use other paid sick time prior to using this emergency paid sick time.

How much must employers pay?

Employers are required to pay employees that take emergency leave for their own condition related to COVID-19 (see (1), (2), and (3), above) an amount that is the greater of: (i) their regular pay; (ii) the state minimum wage where they are employed; (iii) the local minimum wage where they are employed; or (iv) the federal minimum wage. This payment is capped at $511 per day or $5,110 in total.

If an employee uses the emergency leave to care for another individual (see (4), above), a child whose educational or child care needs are unavailable (see (5), above), or the employee’s own experience with any other condition that is substantially similar to COVID-19 (see (6), above), then employers are only required to pay 2/3’s of the applicable wage amount. This payment is capped at $200 per day or $2,000 in total.

Tax Credit

Employers will receive a payroll tax credit in an amount equal to 100% of the emergency sick leave wages they pay pursuant to this Act.

Emergency Family & Medical Leave Expansion Act

This bill amends the current Family and Medical Leave Act (”FMLA”) to include leave related to the coronavirus emergency and adds a paid leave requirement when such emergency leave is utilized.

When is leave required?

Any employer with fewer than 500 employees must extend this emergency leave to an employee who has been employed for at least 30 days and who meets the following requirement:

  • The employee is unable to work (or telework) due to a need for leave to care for his/her child under 18 years of age if the school or place of care has been closed, or the child care provider of the employee’s child is unavailable, due to an emergency with respect to COVID-19 declared by a Federal, State, or local authority.

The provision will apply to employers with fewer than 50 employees who are not otherwise covered by the FMLA, unless the Department of Labor issues regulations exempting those small employers.

Are employers required to offer paid leave under this section?

During the first 10 days of leave, employers are not required to provide paid leave. During this time, employees are permitted to substitute vacation, personal, medical, or sick leave in place of the emergency leave.

If leave is required beyond 10 days, then employers must provide paid leave for each additional day of leave. Employers must pay an amount of at least 2/3 of the employee’s regular rate of pay based on the number of hours the employee would normally be scheduled for work. Any paid leave under this section will be capped at $200 per day or $10,000 in total.

Tax Credit

Employers will receive a payroll tax credit in an amount equal to 100% of the emergency family leave wages they pay pursuant to this Act.

Other requirements and possible exemptions

Employers are required to restore the jobs of those employees who take the emergency leave. However, employers employing fewer than 25 employees are not required to restore a position that is eliminated due to economic conditions caused by the coronavirus emergency so long as the employer has made reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced.

Questions?

This bill will become effective within 15 days of the enactment and will stay in effect until December 31, 2020. Employers should make sure that they are prepared to communicate these temporary forms of leave to their employees to ease any concerns that some may have as the number of confirmed cases of coronavirus grows.

Should you need any assistance in assessing your current practices, if you’d like to discuss methods for ensuring that you comply with these new provisions, or if you have any other questions at all please contact the Gunster Labor and Employment Law Practice at (561) 655-1980.


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