Last updated on March 27, 2020.
On March 18, 2020, President Trump signed into law new legislation in response to the coronavirus disease 2019 (“COVID-19”) pandemic. Both houses of Congress overwhelmingly voted in support of the legislation with the Senate passing it by a vote of 90-8 just hours before the President signed it. The law was written to take effect within 15 days of enactment, and a recent release from the Department of Labor clarifies that the law takes effect April 1, 2020.
The law is broad and addresses a variety of relief efforts related to coping with COVID-19. This summary captures noteworthy impacts for employers and businesses. Among other broad-sweeping provisions, the “Family First Coronavirus Response Act” makes changes to the Family Medical Leave Act (“FMLA”), including mandatory emergency paid leave under certain circumstances, and by creating the Emergency Paid Sick Leave Act as a standalone provision. It also creates certain tax credits for employers, which correspond to the new requirements under the expanded FMLA and Emergency Paid Sick Leave Act.
I. Emergency Family and Medical Leave Expansion Act
In what is being called the Emergency Family and Medical Leave Expansion Act, this new law temporarily expands amended provisions of the FMLA until December 31, 2020. This expansion makes several noteworthy alterations to the familiar FMLA scheme, broadly captured below:
Expands Emergency Coverage to Smaller Employers
The Emergency Family and Medical Leave Act applies to employers who employ “fewer than 500 employees” (adding coverage for smaller employers of 1 to 49 employees but excluding employers of more than 500 workers).
Changes Eligible Employees
The Emergency Family and Medical Leave Expansion Act changes the definition of “eligible employee” to apply to anyone employed at least 30 days (rather than 12 months per the regular FMLA rules).
Expands Covered Events to COVID-19 Related Causes
The Emergency Family and Medical Leave Expansion Act defines “qualifying need related to a public health emergency” to mean that the employee is unable to work (or telework) due to a need for leave to care for a son or daughter under 18 if the school or place of care has been closed or the child care provider is unavailable due to COVID-19. If the necessity for leave is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.
Makes Leave Paid and Unpaid
The Emergency Family and Medical Leave Expansion Act provides up to 12 weeks of leave and:
Exempts Smaller Employers from the Requirement to
Return Employees to the Same Position
The Emergency Family and Medical Leave Expansion Act:
Exempts Certain Employers from Employee-Filed Civil Litigation
The Emergency Family and Medical Leave Expansion Act exempts employers that do NOT satisfy the traditional definition provided by the FMLA (50 or more employees working each day in 20 or more calendar weeks in the current or preceding calendar year) but who are otherwise impacted by the new legislation from civil actions brought by employees for a violation of the Emergency Family and Medical Leave Expansion Act.
Permits the Exclusion of Health Care Providers and Emergency Responders
The Emergency Family and Medical Leave Expansion Act allows employers of health care providers and/or emergency responders to elect to exclude such employees from the application of the emergency changes affecting the definitional changes of employer and eligible employee, the “qualifying need related to a public health emergency” provision, and the paid/unpaid leave provisions.
Provides the Secretary of Labor with Discretion to Issue Regulations
The Emergency Family and Medical Leave Expansion Act also provides the Secretary of Labor with authority to issue regulations for good cause that may:
II. Emergency Paid Sick Leave Act
In what is being called the Emergency Paid Sick Leave Act, this section of the new law also lasts until December 31, 2020. It defines employers as and applies to:
Reasons for Paid Leave
The Emergency Paid Sick Leave Act requires an employer to provide paid sick time to each employee employed by the employer to the extent the employee is unable to work (or telework) because:
Amount of Paid Leave
For qualifying employees, the Emergency Paid Sick Leave Act entitles employees to paid sick time, as follows, and under the following conditions:
Conditions of Paid Leave
The following conditions of paid emergency leave also apply:
In addition, the new legislation provides the Secretary of Labor with authority to issue regulations for good cause that may:
III. Tax Credits for Paid Sick and Paid Family and Medical Leave
In this same section of the new legislation some employers are extended additional tax credits:
Moreover, the new legislation broadly provides that “[a]ny wages required to be paid by reason of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act shall not be considered wages for purposes of section 3111(a) of the Internal Revenue Code of 1986,” which imposes an excise tax on employers.