Employer Update: Families First Coronavirus Response Act Implementation

Employer Update: Families First Coronavirus Response Act Implementation

The Families First Coronavirus Response Act has been signed into law and its provisions will be effective for the period beginning April 2nd through December 31st, 2020.

The US Department of Labor will be giving updates and guidance to employers over the next two weeks prior to the new legislation taking effect. Until that guidance has been issued, it is suggested to tell employees that you are in the process of reviewing the new laws: “We are reviewing the new law and its provisions, as our goal is to do everything we can to try to protect our workers and ensure we all remain healthy when things return to normal.”

Here is what is known as of today.

Expanded Paid Sick Leave:

Employers will have to provide up to 80 hours of paid-sick-leave benefits, in addition to any existing PTO or PSL benefits, if an employee:

1. Has been ordered by the government to quarantine or isolate because of COVID-19.
2. Has been advised by a health care provider to self-quarantine because of COVID-19.
3. Has symptoms of COVID-19 and is seeking a medical diagnosis.
4. Is caring for someone who is subject to a government quarantine or isolation order or has been advised by a health care provider to quarantine or self-isolate.
5. Needs to care for a son or daughter whose school or child care service is closed due to COVID-19 precautions.
6. Is experiencing substantially similar conditions as specified by the secretary of health and human services, in consultation with the secretaries of labor and treasury. 

Under the legislation, paid sick leave is limited to $511 a day ($5,110 total) for a worker’s own care and $200 a day ($2,000 total) when the employee is caring for someone else. Employers will be required to post a notice (which is still being developed) and will be provided a quarterly tax credit of the entire amount of the qualified leave against the employer’s portion of Social Security taxes.

Expanded Emergency FMLA:

The Emergency Family and Medical Leave Expansion Act amends the current Family and Medical Leave Act (FMLA), allowing up to 12 weeks of leave for eligible employees who can’t work (or telework/remote work) because their minor child’s school or childcare service is closed due to a COVID-19 emergency declared by a federal, state or local authority. The first 2 weeks (10 working days) may be unpaid, and the subsequent 10 weeks are to be paid at a rate of no less than two-thirds of their regular rate of pay for the hours normally scheduled. Employees who work part-time, irregular schedules are entitled to a rate based on the average number of hours worked over a six-month period. Paid leave under this law is capped at $200 per day and $10,000 in the aggregate, per individual.

The normal eligibility rules have been changed to apply to workers who have been employed for at least 30 days (instead of the usual 12 months under the prior version of the FMLA). Also, for specified COVID-19-related reasons, the current employee threshold for coverage is changed from covering employers with 50 or more employees to covering any workplace with fewer than 500 employees.

The employee may only take emergency FMLA leave when the employee is unable to work (or telework/remote work) due to a need to care for the employee’s child under 18 years of age if the school or place of care has been closed or the child care provider is unavailable due to a public health emergency, meaning an emergency related to COVID-19.

As with the paid sick leave expansion, employers are entitled to a full quarterly tax credit for qualified family leave wages.

For both the expanded emergency PSL and FMLA, small businesses with fewer than 50 employees may be able to request exemptions from the Secretary of Labor when its requirements would jeopardize the viability of the business.

Temporary Workers:

Under prior FMLA rules, temporary employees would have been included in the total number of employees (within a 75-mile radius) to determine FMLA eligibility only if they have worked there for at least 20 workweeks in the past year. Temporary employees would also historically not have qualified for FMLA because of the 12 months/1250-hour requirement.

It is still unclear at this time how much of the emergency legislation, including the expanded FMLA, will apply to temporary/seasonal employees. However, I am attending a webinar on Monday morning that will hopefully help clarify exactly how the new legislation affects temporary/seasonal workers and will update everyone again then.