"Families First Coronavirus Response Act” Becomes Law

Yesterday afternoon (March 18 at 3:32 p.m.), the Senate passed H.R. 6201 the “Families First Coronavirus Response Act” with a vote count of 90 to 8. The President signed the bill into law last night and the law will go into effect 15 days from signing. In summary, the law provides paid emergency leave for employees, free coronavirus testing, unemployment benefits, food assistance, and additional Medicaid funding.

In part, this law creates an “Emergency Paid Sick Leave Act” and amends the “Family and Medical Leave Act of 1993” (FMLA) by adding a section for “Public Health Emergency Leave” for leaves related to COVID-19, including paid leave, and applying to employers with fewer than 500 employees – including employers with fewer than 50 employees – businesses that are normally not required to comply with the FMLA. However, employers with fewer than 50 workers can apply for an exemption from providing paid family and medical leave and paid sick leave if it "would jeopardize the viability of the business." The law does not include any payroll tax relief, but does provide for a tax credit equal to 100 percent of the qualifying sick leave and family leave paid by the employer. These paid leave benefits expire on December 31, 2020.

The new amendments included in the law also seem to grant discretion to employers to exclude certain emergency responders and healthcare workers from both paid sick leave and the additional FMLA paid leave. Specifically, those employers “may elect to exclude such employee from the application of the provisions in the amendments made under of section 3102 of this Act.”

Sick Leave. Under the new law, employers are still required to provide two weeks of emergency paid sick leave to employees who are unable to work or telework due to a need for leave because: the employee has been ordered by the government to quarantine or isolate or has been advised by a health care provider to self-quarantine because of COVID-19; the employee has symptoms of COVID-19 and is seeking a medical diagnosis; the employee is caring for a relative who is in quarantine or isolation; or the employee has a child whose school or child care service is closed because of the public health emergency.

• Paid-sick-leave benefits are capped at $511 a day for a worker's own care and $5,110 in the aggregate and $200 a day and $2,000 in the aggregate when the employee is caring for someone else.
• Benefits are paid in accordance with the hours the employee would have normally worked – full time employees would get 80 hours and part time employees receive benefits for the hours they would normally have worked on average for a two-week period.
• Sick leave benefits shall be available for immediate use by the employee for the purposes described in such subsection, regardless of how long the employee has been employed by an employer.
• Employers may not require an employee to use other paid leave provided by the employer before the employee uses the paid sick time.
• Employers may not require employees in need of sick leave to search for or find a replacement employee to cover the hours during which the employee is using paid sick time.
• Employers may not discharge, discipline, or in any other manner discriminate against any employee who takes leave under this Act; or has filed any complaint or has been involved with any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding.

Public Health Emergency Leave. The original bill allowed this paid leave for all the qualifying reasons under the paid sick leave requirements, but the new amendments contained in the law provide paid leave only to employees who are out of the workplace to care for a child. This leave is for a “qualifying need related to a public health emergency,” which means the employee is unable to work or telework due to a need for leave to care for the employee’s child under 18 years of age if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.

• Only employees who have been on the payroll with the employer for at least 30 calendar days would be eligible for paid family leave benefits.
• The initial ten days of the leave may be unpaid. (Likely already covered under paid sick leave.)
• The employee may elect to substitute any accrued paid leave for unpaid leave.
• After the initial ten days, the employer must provide paid leave.
• The amendments also added a clarification that paid leave to care for a child cannot exceed $200 per day and $10,000 in the aggregate.
• Employers with fewer than 25 employees are not required to provide job restoration to an employee after such a leave if the following conditions are met: the employee’s position when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer— that affect employment and are caused by a public health emergency during the period of leave. But the employer must make reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.
• Employers may not discharge, discipline, or in any other manner discriminate against any employee who takes leave under this Act; or has filed any complaint or has been involved with any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding.

REMEMBER: Employees may still be eligible for unpaid FMLA leave to care for other family members or his or her self.

If you need assistance, please reach out to your BrownWinick attorney  or submit a message through our Contact Us form. For updates on COVID-19 and new guidance provided by BrownWinick attorneys, please visit our COVID-19 Resource Page.