On March 18, 2020, the President signed the Families First Coronavirus Response Act. The Act addresses a number of issues and concerns for families during the COVID-19 emergency. There are two portions of this act that will most impact employers: (1) the Emergency Family and Medical Leave Expansion Act and (2) the Emergency Paid Sick Leave Act. Here are CLG attorneys Lisa M. Molsbee and Emily J. Irwin takes on these portions of the new law which take effect on April 2, 2020.
The Emergency Family and Medical Leave Expansion Act amends the Family and Medical Leave Act, FMLA, by redefining the definition of “employer.” Under FMLA, employers with less than 50 employees are not subject to FMLA, thus are not required to provide the unpaid leave required. However, under the Emergency Act, any employer with less than 500 employees is subject to the law. As a result, small businesses, with under 50 employees, that previously had no FMLA responsibilities will now be covered. The fact that small employers that previously did not have FMLA obligations are now being required to not only provide leave but to pay for it, has been a major concern related to the Emergency Act. It is important to remember that employers with less than 50 employees are still not covered under FMLA, only the emergency portions related to COVID-19.
Similarly, the definition of “employee” is changed under the emergency act, as well. Under FMLA, employees were not eligible for leave until they had worked for at least 12 months. The Emergency Act covers employees that have worked for the employer for at least 30 calendar days.
Qualified employees who are unable to work due to the need to care for a son or daughter, under the age of 18, if the school or place of care is closed or the childcare provider is unavailable due to a COVID-19 public health emergency, as declared by federal, state, or local officials. Other than the school, the childcare provider must be one that is paid by the employee. For instance, if a relative watches the employee’s child for free, then the employee is not eligible for paid FMLA leave if the relative is no longer available to care for the children.
Under the emergency act, qualified employees are eligible for 12 weeks of COVID-19 related leave. The first two weeks of that leave are unpaid; however, the remaining 10 weeks of leave is paid at a rate of not less than 2/3 of the employee’s regular rate of pay, not to exceed $200 per day. Only the specific, COVID-19 related leave addressed in the Emergency Act is paid leave. All other FMLA leave is not impacted by the Emergency Act. For example, an employee that needs leave to care for a family member with cancer does not receive paid leave.
Emergency Paid Sick Leave Act.
Employers subject to the Act are 1) private entity employers with less than 500 employees, 2) public agency employers with one or more employees, and 3) employers engaged in multi-employer collective bargaining agreements. The Act requires these employers to provide paid sick leave to part-time or full-time employees who are unable to work (or telework) due to one of the following:
- Employee is subject to Federal, State, or local quarantine or isolation order related to COVID-19,
- Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19,
- Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis,
- Employee is caring for an individual who falls under 1 or 2,
- Employee caring for their own child whose school, daycare, or child care provider is closed or unavailable due to COVID-19 precautions, OR
- Employee is experiencing symptoms substantially similar to COVID-19, as defined by the Secretary of Health and Human Services.
Employers who employ health care providers or emergency responders are notably excepted from this requirement, as they may elect to exclude such employees.
The paid sick leave is paid at the employee’s regular rate of pay, but in an amount not to exceed $511 per day for a total of $5,110 for employees that are unable to work because of items 1-3, and $200 per day for a total of $2,000 for employees unable to work because of items 4-6. This paid sick leave is in addition to any sick leave that the employer may already offer. Full-time employees are entitled to 80 hours of paid sick leave, and part-time employees are entitled to the average number of hours the employee works over a two-week period.
The paid sick leave under the Act is available for the employee’s immediate use, regardless of how long they have worked with the employer. The employer may not require the employee to find a suitable replacement during their absence and may not terminate or otherwise discriminate against the employee for their use or enforcement of paid sick leave under the Act.
All employers subject to the Act must post a notice of the requirements under the Act in a conspicuous place no later than March 25, 2020. The notice must be prepared or approved by the Secretary of Labor. Failure to comply with the Act may subject the employer to liability under the Fair Labor Standards Act (“FLSA”).
Both the Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act provide that the Secretary of Labor can exempt small business, i.e. under 50 employees, from the acts when the imposition of the requirements would jeopardize the viability of the business as a going concern. Also, certain medical providers and first responders can be excluded by the Secretary of Labor for good cause from the FMLA portion, they may opt out of the paid leave. Unfortunately, small businesses do not have any guidance, yet, on how to request an exemption. In addition to the possibility of exemption, the law creates a refundable tax credit equal to 100% of the amount of wages paid.
Our employment and healthcare lawyers regularly represent and advise businesses across the State of Oklahoma, form mom-and-pop businesses to large corporations. Let us know how we can help your business.
About the Authors
Lisa M. Molsbee, J.D. is a Director at Christensen Law Group, PLLC. She is an expert in employment matters, insurance, subrogation, appellate matters and litigation. You can read more about her and her legal experience here.
Emily J. Irwin, J.D. is an associate at Christensen Law Group, PLLC. She is an expert in healthcare, employment matters, business transactions and litigation. You can read more about her and her legal experience here.