In an effort to respond to the multiple challenges posed by the coronavirus pandemic, the United States Congress has enacted the Families First Coronavirus Response Act. This new law, signed by the President on March 18, provides for expanded benefits to employees who are affected by the current healthcare crisis. In particular, the law creates a new paid sick leave benefit and a new category of paid leave, known as public health emergency leave.
Paid Sick Time
The paid sick time law provides up to 80 hours of paid sick time (reduced pro rata for part-time employees), which may be used when an employee is not able to work or telework for the following coronavirus-related reasons:
- the employee is subject to a government quarantine or isolation order
- the employee must self-isolate on the advice of a healthcare provider
- the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis
- the employee is caring for an individual subject to a government quarantine order or a healthcare provider’s self-isolation recommendation
- the employee is caring for a child as a result of school or childcare closings; or
- the employee is experiencing another “substantially similar” condition that may be specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
This benefit applies to private employers with fewer than 500 employees, and to public employers of any size. Employees are eligible from the first day of employment.
An employee receives compensation in full, up to $511 per day, if the absence is for the employee’s own condition. An employee receives two-thirds of his or her regular compensation, up to $200 per day, if the absence is related to caring for another individual.
Employees cannot be required to use any other available paid leave before using this new paid sick time benefit.
Public Health Emergency Leave
Public health emergency leave, which is a new category of leave under the Family and Medical Leave Act (FMLA), provides employees who are unable to work or telework with up to 12 weeks of leave to care for a child under the age of 18 whose school or childcare is unavailable as a result of a coronavirus-related public health emergency. Employees who fall under this category are the only ones who are eligible for both this leave and the new paid sick time.
Public health emergency leave deviates from other forms of FMLA leave in several ways. The new leave is paid, unlike other forms of FMLA. The new leave covers employers with fewer than 500 employees, whereas the other provisions of the FMLA apply to employers with fifty or more employees. Employees are eligible for public health emergency leave after they have worked 30 calendar days. In contrast, other FMLA leaves require an employee to have worked at least one year. The new leave also requires employers who are unable to reinstate an employee due to economic situations to inform the employee of suitable openings for one year.
An employee is not paid for the first two weeks of leave (but may choose to use any paid time off benefit) and receives at least two-thirds of his or her regular wages, up to $200 per day, for up to ten additional weeks.
An employer of individuals who are health care providers or emergency responders may elect to exclude these employees from coverage. A small business with fewer than 50 employees may seek a hardship exemption, where providing the new benefits would jeopardize the viability of the business. This exemption, however, applies only to absences related to caring for a child due to school or childcare closings. The Secretary of Labor is authorized to issue regulations regarding these exemptions.
To defray the costs of these benefits, employers may claim a credit against payroll taxes. Compensation paid under these provisions will not be subject to the 6.2% social security payroll tax that typically applies to wages.
Employers will be required to post notices about these new laws, and the Department of Labor is supposed to issue a model posting within seven days.
These new benefits will go into effect within fifteen days and remain in effect only until December 31, 2020.
Action Steps for Employers
Employers will need to modify their policies and advise employees of these new benefits. The Employment team at Prince Lobel is available to help in writing or reviewing policies. We can also provide guidance on any other employment law issues raised by the current healthcare crisis.
If you would like additional information, please contact the authors of this alert:
Daniel Tarlow (firstname.lastname@example.org; 617-456-8013) or
Laurie Rubin (email@example.com; 617-456-8020)