By: Tricia A. Shackelford, Esq. and Melanie J. Kilpatrick, Esq.
In response to the crisis caused by the COVID-19 pandemic, Congress passed the Families First Coronavirus Response Act on March 18, 2020. The following provisions of the Act will have a direct impact on employers across the country.
The Act provides for refundable credits for the employer’s portion of the Old Age Survivors and Disability Insurance (OASDI) component of payroll taxes for private sector employers with fewer than 500 employees and government employers (the “Employers”). Other key provisions that affect Employers are:
Emergency Sick Leave
- Employers must provide employees who cannot work or telework with paid sick time off, if:
- The employee is the subject of a COVID-19 quarantine or isolation order;
- The employee has been advised by a health care provider (“HCP”) to self-quarantine due to COVID-19 concerns;
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- The employee is taking care of an individual who is either (i) subject to a quarantine or isolation order, or (ii) has been advised by an HCP to self-quarantine;
- The employee is caring for a child whose school or day care has closed, or whose care provider is otherwise unavailable, due to COVID-19 precautions; or
- The employee is experiencing any other substantially similar condition specified by DHHS in consultation with the U.S. Treasury and U.S. Department of Labor.
- Employers of employees who are HCPs or emergency responders may elect to exclude those employees from emergency sick leave provisions;
- Full-time employees are to receive 80 hours of sick leave and part-time workers must be granted leave equivalent to their average hours worked in a two-week period, with the sick leave in either instance being available for immediate use regardless of the amount of time the person has been employed.
- Paid sick time does not carry over from year to year.
- Workers taking leave for themselves will have to be paid at least their normal wage or the applicable federal, state, or local minimum wage, whichever is greater. Workers taking time off to care for a family member must be paid at two-thirds of the foregoing rate. Sick leave pay is capped at $511 per day and $5,110 in the aggregate for the leave taken for certain categories of employees for self-care and $200 per day or $2,000 in the aggregate for leave taken for certain categories of employees to care for another.
- Wages to be paid under the Act are not subject to the 6.2% social security payroll tax typically paid by Employers on employee wages.
- Employers with existing paid leave policies will be required to provide workers with the sick leave under their existing policies during this emergency. An Employer cannot require a worker to use other available paid leave before using their policy sick time.
- Employers are prohibited from:
- requiring workers to find replacement coverage for their time off; or
- discharging or discriminating against workers for requesting paid sick leave or filing a complaint against the employer related to such work.
- Employers must post a notice with information regarding the Act’s sick leave provisions.
- The Act authorizes the Department of Labor to issue regulations to (i) exclude certain HCPs and emergency responders from paid leave benefits, (ii) exempt small businesses with less than 50 employees from the paid leave requirements if such benefits would jeopardize the continuation of the business as a going concern, and (iii) ensure consistency between the emergency sick leave provisions and the emergency family leave provisions of the Act.
- Workers under multi-employer collective bargaining agreements whose Employers pay into pension plans will have access to paid emergency leave.
Emergency Family Leave
- Employers must provide up to 12 weeks of FMLA leave for employees who have been employed for at least 30 days and who are unable to work or telework because they have to care for a minor child if that child’s school or care provider has been closed or if the care provider is unable to provide care due to a COVID-19 emergency.
- Employers can elect to exclude HCPs and emergency responders from emergency family leave provisions.
- The first 10 days of leave can be unpaid. Thereafter, the employee is entitled to two-thirds of their normal pay rate. Paid leave is capped at $200 a day and a total of $10,000.
- In general, the Employer must return the employee to her/his prior position at the end of the employee’s leave. This requirement does not apply to an Employer with fewer than 25 employees if the Employer eliminates the employee’s position due to economic conditions or other changes in the Employer’s operations caused by the COVID-19 pandemic as long as the Employer makes reasonable efforts to return the employee to an equivalent position.
- Wages required to be paid under the emergency family leave provisions will not be subject to the 6.2% social security payroll tax typically paid by employers on employees’ wages.
- The Act authorizes the Department of Labor to issue regulations to (i) exclude certain HCPs and emergency responders from paid leave benefits, and (ii) exempt small businesses with less than 50 employees from the paid leave requirements if such benefits would jeopardize the continuation of the business as a going concern.
- Workers under multi-employer collective bargaining agreements whose employers pay into pension plans will have access to paid emergency leave.
The provisions of the Act are
effective on April 2, 2020 and are set to expire on December 31, 2020.
 The Department of Labor must issue a model Notice by March 25, 2020.