Employer Obligations: Families First Coronavirus Act (H.R. 6201)

Paid FMLA and Paid Sick Leave – Families First Coronavirus Response Act (H.R. 6201)

All of us are currently experiencing the effects of the Coronavirus on our personal and professional lives.
For HR professionals, our role is to stay informed about legislative changes, cascade critical information to senior leadership to ensure compliance, and align our organizations with effective communication to employees.  Below I have provided a summary of details regarding The Families First Coronavirus Response Act, which has passed the Senate and has been signed by President Trump.  I have summarized this information from a legal briefing from employment law firm, Jackson-Lewis.

Summary of Employer Obligations:

Employers and Employees Covered
Private employers with fewer than 500 employees and certain public employers
Exception for healthcare workers and emergency responders (see legal briefing)
Exemption for small businesses with fewer than 50 employees if implementation would jeopardize the viability of the business

FMLA Expansion for COVID-19
Allows an employee who is unable to work (or telework) to take leave due to a need to care for the employee’s son or daughter under 18 if the child’s school, daycare has been closed, or childcare provider is unavailable due to a “public health emergency”, or COVID-19 as we are experiencing now.

Paid Sick Leave for COVID-19
Employers with fewer than 500 employees must immediately make available 80 hours of paid sick leave for full-time employees (or the equivalent of the average number of hours over two weeks for part-time employees) for the following reasons:
1. Employee subject to a COVID-19 quarantine or isolation order
2. Employee advised to self-quarantine related to COVID-19
3. Employee experiencing symptoms and seeking medical diagnosis
4. Employee caring for an individual who is subject to 1. or 2.
5. Employee is caring for their son or daughter if the school has been closed or childcare provider is unavailable due to COVID-19
6. Employee 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

Amount of Pay
Under FMLA, when leave is needed due to a school or daycare closure, the employer can provide the first 10 days of leave unpaid, then subsequent absences for this reason must be paid at 2/3 the employee’s regular rate of pay.

The Act includes a cap of $200 per day and $10,000 in aggregate.  If the first 10 days are unpaid, an employee may elect to substitute any accrued vacation leave, personal leave, or medical/sick leave for the unpaid leave.

Paid sick leave is paid at the employee’s regular rate, but it too is capped:  $511 per day and $5,110 in the aggregate for a use described in paragraph 1. 2. or 3; and $200 per day and $2,000 in the aggregate for a use described in paragraph 4. 5. and 6.

Effective Date
15 days after enactment.  The President signed The Families First Coronavirus Response Act on March 18, 2020; therefore, the enactment date will be April 2, 2020 and will remain in place until the end of 2020.

Is leave job protected?
Yes, the FFCRA offers job protection.  However, the FMLA’s requirement that an employee be restored to the same or equivalent position after leave does not apply to an employer with fewer than 25 employees if: the employee’s position no longer exists due to economic conditions or other changes in the employer’s operations that affect employment and are cause by the public health crisis during the period of leave.

The employer must make reasonable efforts to restore the employee to the same or an equivalent position, and if the reasonable efforts fail, the employer must make efforts to contact the employee and reinstate the employee if an equivalent position becomes available within a one-year period beginning on the earlier of (a) the date on which the qualifying need related to a public health emergency concludes, or (b) the date that is 12 weeks after the date the employee’s leave started.

Who pays for the sick time or leave?
Employers must pay the benefits, but they will receive a tax credit for doing so.

Is the paid sick leave in addition to current leave provided by the employer?
Employers cannot require an employee to use other paid leave provided by the employer before the employee uses the paid sick leave available under the FFCRA.

At what rate is the paid sick leave accrued?
The entire 80 hours of paid sick leave is available immediately.  There is no accrual rate or period,

Which employees are eligible for these benefits?
The new FMLA provisions would apply to employees who have been employed for at least 30 calendar days.  (The usual FMLA requirements that the employee has been employed for a year, worked for at least 1,250 hours, and works in a location where there are 50 employees within a 75-mile radius would not apply.)

The paid sick leave requirements would apply to all employees under covered employers.

What notice must an employee provide for leave?
The FMLA provisions require employees to provide the employer with “notice of leave as is practicable.”

The paid sick leave provisions state that after the first workday (or portion thereof) that an employee receives paid sick leave, an employer may require the employee to follow reasonable notice procedures in order to continue receiving the paid sick leave.

Does the 500-employee requirement refer to a location or company-wide?
The company (not just the location) must have fewer than 500 employees.

Is carryover required for unused emergency paid sick leave?
The paid sick provisions state that unused paid sick leave does not carry over from one year to the next.

Can an employer pay out unused emergency paid sick leave if the employee separates from employment?
An employer is not required to pay unused paid sick leave if an employee separates from employment.

Are employers with 500 or more employees obligated to provide paid sick or leave benefits?
No. However, they must still comply with state or local leave laws, established policies, or collective bargaining agreements.

I wish all of you well as we navigate through this incredibly challenging time.
Until next time…
Natalie Ivey, MBA, SPHR, SHRM-SCP
President & CEO
Results Performance Consulting, Inc.
Rpchr.com | HR-investigations.com

For the full article, please see this publication from Jackson-Lewis:

https://www.jacksonlewis.com/publication/new-employer-obligations-under-slightly-revised-families-first-coronavirus-act-hr-6201

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