As anticipated, President Trump has signed into law the Families First Coronavirus Response Act. This important new law will be effective April 2, 2020.
As reported previously, here are the key provisions that will impact employers with fewer than 500 employees:
The new law amends the Family and Medical Leave Act by providing up to 12 weeks of paid Public Health Emergency Leave (“PHEL”) to employees working for employers with fewer than 500 employees. PHEL is limited to those instances in which an employee is unable to work (or telework) due to the need for leave to care for the minor child (under 18 years of age) of such employee if the school or place of care has been closed, or the child care provider is unavailable, due to a public health emergency.
The first ten work days of PHEL may consist of unpaid leave. During this time, an employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. After the first ten days, an employer must provide paid leave in an amount that is not less than two-thirds of an employee’s regular rate of pay, for the number of hours the employee would otherwise be normally scheduled, which in no event shall exceed $200 per day and $10,000 in the aggregate.
The new law also requires employers with fewer than 500 employees to provide two weeks of Paid Sick Time (“PST”) for various COVID-19 related events when the employee is unable to work or telework. The amount of paid leave is capped at $511 per day and $5,110 in the aggregate for PST related to an employee’s own COVID-19 event, and $200 per day and $2,000 in the aggregate to care for a family member due to COVID-19-related reasons. PST must be made available for immediate use, regardless of how long the employee has been employed by an employer. The required leave under this section also applies for part-time employees, whose leave amount will be based on their average number of hours worked during a two-week period.
It is noteworthy that one form of PST is also an event covered by the Emergency Family and Medical Leave Expansion Act (described above), i.e., leave for an employee caring for a child if the child’s school or place of care has been closed, or the child care provider is unavailable, due to COVID-19 precautions. In this instance, an employee may be able to draw from their PST bank to cover the first ten work days of PHEL that otherwise would be unpaid leave.
Unlike the Emergency Family and Medical Leave Expansion Act, the Emergency Paid Sick Leave Act expressly prohibits an employer from requiring employees to draw from existing leave to pay for PST, thus requiring the employer to create a brand-new form of paid leave. Under the Emergency Paid Sick Leave Act, the employee must be allowed to use PST before dipping into any other accrued leave provided by the employer.
It is important to remember that the Families First Coronavirus Response Act is just one of many laws that are implicated by COVID-19. The attorneys at Smith & Downey are standing by to address questions or concerns that employers may have regarding best practices in dealing with this unparalleled national crisis. Please contact Doug Desmarais (firstname.lastname@example.org) and Kerstin Miller (email@example.com) for further information.