March 20, 2020
On Wednesday, March 18, 2020, President Trump signed the Families First Coronavirus Response Act (the “Families First Act”) into law. The Families First Act contains two provisions that employers should familiarize themselves with. First, it provides for two weeks of paid sick leave for employees forced to miss work due to COVID-19 related illnesses. Second, it entitles employees to receive leave for up to twelve weeks pursuant to the Family Medical Leave Act (“FMLA”) when the employee is forced to miss work in order to care for a child whose school has closed due to COVID-19.
The Families First Act applies to private employers with fewer than 500 employees, as well as any public agency with at least one employee. The provisions of the Families First Act go into effect not later than April 2, 2020, and will conclude on December 30, 2020.
Division E of the Families First Act is referred to as the Emergency Paid Sick Leave Act. Under this provision, an employee is entitled to two weeks (or up to 80 hours) of sick pay if:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
- The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
- The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Absences under items 1–3 are paid up to a maximum of $511 per day ($5,110 in the aggregate), and absences under items 4–6 are paid at a maximum rate of $200 per day ($2,000 in the aggregate). Employees are eligible to receive sick pay immediately, regardless of how long they have been employed.
It is fairly easy to determine whether items 2–6 are being met, but item 1 causes some confusion. The Emergency Paid Sick Leave Act does not define “quarantine or isolation order.” As a result, general government guidelines to stay at home and apply acceptable social distancing likely do not constitute a “quarantine or isolation order.” Instead, an enforceable order is likely needed to meet the applicable threshold. Given the obvious ambiguity, explanatory regulations will likely be implemented to address this issue in the coming days.
Division C of the Act is referred to as the Emergency Family and Medical Leave Expansion Act. Under this provision, FMLA leave is extended to employees who have worked for the employer for at least 30 days, which is a change from the normal requirements under the FMLA. Employees are entitled to expanded FMLA leave if the employee is unable to work due to a need for leave to care for a son or daughter under 18 years of age of such employee if the school or place of care has been closed, or if the child care provider of such son or daughter is unavailable, due to a public health emergency. The first two weeks (10 business days or 14 calendar days) are unpaid. After the first two weeks, the Expanded FMLA is paid at two-thirds of the weekly rate, but in no event more than $200 per day (up to $10,000 in the aggregate).
It does not appear that employees who can work by teleworking are eligible for these benefits. In order to alleviate some of the financial distress these provisions will inevitably place on employers, tax credits and grants may be made available to employers. If you have any questions about the information in this Legal Alert, please contact your Rothberg attorney to see if we can assist you.
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