On Wednesday evening, March 18th, President Trump signed into law the Families First Coronavirus Response Act (the “Act”), which, among other things, mandates paid time off for certain qualifying events. There are two primary components in terms of paid time off: (1) the Emergency Family and Medical Leave Expansion Act (“E-FMLA”); and (2) the Emergency Paid Sick Leave Act (“EPSLA”).
EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT
The E-FMLA amends the Family and Medical Leave Act of 1993 (“FMLA”) by adding “public health emergency leave” as a qualifying FMLA event.
Coverage. The E-FMLA applies to government employers of any size and private employers of fewer than 500 employees. The Secretary of Labor may issue regulations to exempt businesses with fewer than 50 employees if compliance would jeopardize the viability of the business.
Eligible employees are those who have been employed for at least 30 calendar days by the covered employer. Also, employers of employees who are health care providers or emergency responders may elect to exclude those employees from coverage under the E-FMLA.
Leave Period. 12 weeks of job-protected leave, just like traditional FMLA leave. Note, however, that unlike the traditional FMLA qualifying reasons, E-FMLA leave has a paid component, discussed below.
Qualifying Reason and Notice. Employees, who are unable to telework or work remotely, may take E-FMLA leave only to care for a child (under age 18) of the employee whose school or daycare is closed, or whose childcare provider is unavailable, due to a COVID-19 public health emergency declared by a federal, state or local authority. Employees are required to give as much advance notice as practicable if the leave is foreseeable.
Note that the traditional qualifying reasons under the FMLA remain intact. For traditional FMLA leave, the original eligibility and coverage requirements (12 months, 1,250 hours, 50 employees within a 75 mile radius) still apply.
Unpaid and Paid E-FMLA Leave Amounts. The first 10 days of E-FMLA leave are unpaid. If, however, the employer has existing PTO policies for paid vacation, or personal, medical or sick leave that otherwise would apply, the employee may choose to use his or her accrued PTO and be paid for some or all of the initial 10-day period. The employee also can use available paid sick leave under EPSLA (discussed below) during this initial 10 day period.
Beginning on day 11 of E-FMLA leave, the employer must pay the employee two-thirds (2/3) of his or her regular pay, with a cap of $200 per day and $10,000 in the aggregate, per employee.
Job protection. At the end of the E-FMLA leave, the employee has the same right to job reinstatement as under the traditional FMLA rules, with one exception. The E-FMLA provides that, under certain circumstances, employers of fewer than 25 employees are not required to reinstate the employee to his or her same position.
Discrimination and Retaliation. The FMLA’s non-discrimination and non-retaliation provisions still apply.
Effective Date. No later than April 2, 2020 (15 days after it was signed by President Trump). Presently, the E-FMLA expires on December 31, 2020.
EMERGENCY PAID SICK LEAVE ACT (“EPSLA”)
Coverage. The EPSLA applies to government employers, as well as private employers with fewer than 500 employees. All current employees of a covered employer are eligible, without regard to length of service. The Secretary of Labor may issue regulations limiting the coverage of EPSLA, as discussed below.
Leave Period. Full-time employees are eligible for 80 hours of EPSLA leave, and part-time employees are eligible for paid leave equal to the average number of hours worked over a 2-week period.
This paid sick time is in addition to any PTO an employee already may have accrued, and should be used first to cover any qualified leave unless the employee requests otherwise. An employer cannot require an employee to use other paid leave before the employee uses the paid sick leave under EPSLA. Furthermore, the employer may not require the affected employee to search for or find a replacement to cover the hours of sick time taken.
Qualifying Reasons. An employee who is unable to work or telework due to one of the following six (6) reasons qualifies for paid sick leave:
- The employee is subject to a federal, state or local order to quarantine or isolate, related to COVID-19;
- The employee has been advised by a healthcare 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 either (1) or (2);
- The employee is caring for a child (under age 18) of the employee, whose school or daycare is closed, or whose childcare provider is unavailable due to the COVID-19 precautions; or
- 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. What this means remains unclear.
Notice. After the first workday of leave, the employer may require the employee to follow reasonable notice procedures in order to continue receiving such leave.
Paid Leave Amount. Employees who take leave for any of the first three qualifying reasons above are entitled to full, regular pay, for the leave period discussed above, subject to a cap of $511 per day and $5,110 in the aggregate per employee. The fourth, fifth and sixth qualifying reasons above entitle employees to two-thirds (2/3) regular pay, subject to a cap of $200 per day and $2,000 in the aggregate per employee. Unused EPSLA leave is not required to be paid out to employees upon separation from employment. No later than April 2, 2020, the Secretary of Labor must issue guidelines to help employers calculate the amount of paid sick time.
Discrimination and Retaliation. It is unlawful for an employer to discharge, discipline, or otherwise discriminate against an employee who takes paid sick leave under EPSLA, files a complaint or proceeding to enforce rights under EPSLA, or testifies in such a proceeding.
EPSLA Poster. The Secretary of Labor is required to issue a model notice of employees’ rights under EPSLA within 7 days of enactment (by March 25, 2020), which employers are required to keep conspicuously posted with other employee notices on the premises.
Additional Regulations. The Secretary of Labor has authority to issue regulations to: (1) exclude certain healthcare providers and emergency responders from coverage under EPSLA, including by allowing their employer to opt-out; (2) exempt small businesses with fewer than 50 employees from having to provide EPSLA leave under qualifying reason #5, if doing so would jeopardize the viability of the business; and (3) as otherwise necessary to carry out the purposes of EPSLA, including to ensure consistency between EPSLA and the E-FMLA. These regulations have not yet been issued.
Effective Date. No later than April 2, 2020 (15 days after it was signed by President Trump). As with the E-FMLA, EPSLA expires on December 31, 2020.
Qualified paid leave under the E-FMLA and EPSLA is exempt from the usual employer (but not employee) 6.2% Social Security payroll tax. Further, employers may be entitled to a payroll tax credit of up to $511 per day for qualified paid sick leave under the EPSLA and up to $200 per day for any qualified family leave wages under the E-FMLA. Other limitations may apply. These credits and exemptions only apply to narrow categories of leave defined by the E-FMLA and EPSLA, so it is important for employers to document the reasons why their employees are absent from work. The exemptions and credits would not apply to paid leave provided in excess of what the E-FMLA and EPSLA require.