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On March 13, 2020, the U.S. House of Representatives passed the Families First Coronavirus Response Act in order to address concerns related to the coronavirus emergency. The Senate is expected to vote on the bill early this week. Although this bill has not yet passed, employers should take the time to understand the requirements under this bill if it were to become law as the number of people and businesses impacted by the coronavirus 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.

A. 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.

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 one of the following requirements:

(1) The employee has been ordered or recommended by a public official or health care provider to refrain from physically appearing at his/her job due to exposure to coronavirus or for displaying coronavirus symptoms (and where there is an inability to perform his/her job functions and comply with said order or recommendation);

(2) The employee seeks leave to care for a family member where a public official or health care provider has determined that the family member’s presence in the community would jeopardize the health of the community due to exposure to coronavirus or coronavirus symptoms;

(3) The employee seeks leave to care for his/her child (must be under 18 years old) if the child’s school or care provider has been closed or is unavailable due to the coronavirus emergency (if the circumstances requiring childcare leave is foreseeable, the employee must provide notice of leave to the extent it is practicable).

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

Are employers required to offer paid leave?

During the first 14 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. However, employers cannot require an employee to do so.

If leave is required beyond 14 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.

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.

Further, the Department of Labor may issue relegations to exempt employers that employ less than 50 employees if meeting its requirements would risk the business’s ability to remain viable. All employers should be prepared to comply until the Department of Labor issues implementing regulations.

B. Emergency Paid Sick Leave Act

This bill sets forth emergency paid sick leave requirements for sick time needs that are related to coronavirus. It applies to public entities and 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 seeking sick leave for one of the following reasons:

(1) to self-isolate due to a coronavirus diagnosis;

(2) to obtain a medical diagnosis or medical care if experiencing coronavirus symptoms;

(3) to comply with a health care provider or public official’s recommendation or order where physical presence at the job could risk the health of others due to coronavirus exposure or symptoms;

(4) to care for a family member with coronavirus symptoms, a coronavirus diagnosis, or whose presence in the community has been determined to pose a risk to the health of others;

(5) to care for his/her child if the child’s school or place of care has closed due to coronavirus or if the child’s child care provider is unavailable due to coronavirus

Emergency sick leave 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.

How much must you pay?

Employers are required to pay employees that take emergency leave for their own condition 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. However, if an employee uses the emergency leave to care for a family member or a child whose educational or child care needs are unavailable, then employers are only required to pay 2/3’s of the applicable wage amount.

Tax Considerations

Private employers will receive a tax credit in an amount equal to the qualified emergency sick leave and family leave wages paid by the employer on a quarterly basis.

Questions?

This bill will become effective within 15 days after it is signed into law and will stay in effect until December 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.

We will continue to monitor the bill as it proceeds through the legislature and will provide updates as necessary.  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 Gunster’s Labor and Employment Law practice at (561) 655-1980.

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

About Gunster

Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 12 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach, and its headquarters in West Palm Beach. With nearly 200 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.

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