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COVID-19: The Families First Coronavirus Response Act

By Colette L. Kopon, Lynn S. Kopon, and George H. Sweeney

On March 18, 2020, Congress passed and the President signed Public Law No. 116-127, the Families First Coronavirus Response Act. This Act contains, among other provisions, the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. The Act applies generally to all businesses with fewer than 500 employees, regardless of whether they are nonprofit, for-profit, religious, or non-religious. The paid leave provisions of the Act go into effect on April 1, 2020 and apply to leave taken between April 1, 2020 and December 31, 2020.

Emergency Family and Medical Leave Expansion

The Emergency Family and Medical Leave Expansion Act (Section 3101 et seq.) expands the Family and Medical Leave Act (FMLA) to accommodate employees forced to take leave to care for children due to the Covid-19 emergency. Whereas the FMLA applies to situations where the employee must care for a new child, a sick relative or their own serious illness, this Expansion Act covers employees who are unable to work due to a need to care for a son or daughter under 18 years of age if their school or place of care has been closed, or the child care provider of the son or daughter is unavailable due to a public health emergency with respect to Covid-19 declared by a Federal, State or local authority.
Employees eligible for this leave are employees who have been employed for at least 30 calendar days by the employer from whom leave is requested. This eligibility differs from FMLA in that to be eligible for regular FMLA leave, the employee must have been employed for 1,250 hours prior to eligibility.

Under this Emergency Family and Medical Leave Expansion Act, the first 10 days of leave may consist of unpaid leave. An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave under this Act. (It is noted that if the employee qualifies for Emergency Paid Sick Leave for themselves (as explained below), this initial ten days may be required to be paid leave.) An employer under the Emergency Family and Medical Leave Expansion Act shall provide paid leave for each day of leave that an employee takes after the initial 10 days, up to the period required under the FMLA, which is 12 weeks. Therefore, under this Act, the employer is required to provide paid leave for up to 10 weeks, if the employee meets the eligibility requirements and is requesting leave for the qualified purpose of caring for a son or daughter if their regular school or day care provide is closed due to the Covid-19 emergency. In general, the employer is required to provide paid leave in an amount that is not less than two-thirds of an employee’s regular rate of pay and for the number of hours the employee would otherwise normally be scheduled to work. In no event shall such paid leave for this purpose exceed $200 per day and $10,000 in the aggregate.

A part-time employee is entitled to leave for his or her average number of hours worked in a two-week period. In the case of an employee whose schedule varies from week to week such that the employer cannot determine with certainty the number of hours the employee would have worked, the employer will use a number equal to the average number of hours that the employee was scheduled per day over the six-month period ending on the date on which the employee takes leave, including hours for which the employee took leave of any type.

This Act also requires restoration to the employee’s former position, but this provision does not apply to employers with fewer than twenty-five employees if the position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating condition of the employer that affect employment and are caused by the public health emergency; if the employer makes reasonable efforts to restore the employee; if the employer’s reasonable efforts fail and the employer makes reasonable efforts to contact the employee if a similar position becomes available within one year.

Emergency Paid Sick Leave Act

Under the Emergency Paid Sick Leave Act (Section 5101 et seq.), employees unable to work in the workplace or remotely, because they are: 1. subject to quarantine by Federal, State, or local legal authority; 2. advised to self-isolate by a doctor; 3. experiencing Covid-19 symptoms; 4. are caring for an individual who is subject to the quarantine mentioned by authorities or by a doctor; 5. the employee is caring for the son or daughter of such employee if that employee’s son or daughter’s school or daycare is closed due to the Covid-19 emergency; or 6. the employee is 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.

An employee will be entitled to paid sick time in the amount of eighty hours (80 hours). For part-time employees, sick time will be paid for a number of hours equal to the number of hours that such employee works, on average, over a two-week period. Paid sick time under this provision does not carry over from one year to the next. An employer may not require an employee to find a replacement as a condition of providing paid sick time. The paid sick time described above is available to an employee meeting the requirements regardless of how long the employee has been employed by an employer.

Regarding paid sick time under this Emergency Paid Sick Leave Act, an employee may first use the paid sick time under this Act for the purposes described. An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time under this section.

Paid sick leave under this Act is calculated based on the employee’s required compensation and the number of hours the employee would otherwise normally be scheduled to work, except that in no event shall such paid sick time exceed $511 per day and $5,110 in the aggregate for leave described because they are subject to quarantine by Federal, State, or local legal authority, advised to self-isolate by a doctor, or because they are experiencing Covid-19 symptoms or two-thirds of an employee’s regular rate of pay not to exceed $200 per day and $2,000 in the aggregate for a use described as caring for an individual who is subject to the quarantine mentioned above or has been advised to quarantine, is caring for the son or daughter of such employee if that employee’s son or daughter’s school or daycare is closed or the employee is 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.”

Guidance from the Department of Labor indicates that when calculating pay due to employees, overtime hours must be included. The employee must be paid for the hours they were normally scheduled to work. However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to eighty hours over a two-week period. Paid sick leave does not need to include a premium for overtime hours.

An employee may take a combination of Emergency Paid Sick Leave time and Emergency Family and Medical Leave time, but in no case may the leave taken under these Acts exceed 12 weeks of paid leave. Leave given voluntarily by employers prior to the effective date of this Act, April 1, 2020, does not count toward the leave required of employers under the Act.

Exemptions to the Act

The Act provides two main exemptions to its paid leave provisions. One, the Secretary of Labor may exempt an employer with fewer than 50 employees from the childcare-related paid sick leave and expanded family and medical leave provisions if providing these benefits would jeopardize the viability of the business. The Department will be issuing criteria for this exemption in “forthcoming regulations.”

Two, the Secretary of Labor may exempt, or an employer may choose to exclude employees that act as “healthcare providers” and “emergency responders” from the benefits provided under the new law’s paid leave requirements. The Department of Labor has yet to issue guidance clarifying what employees qualify as a “healthcare provider” or “emergency responder.”
The Wage and Hour Division of the Department of Labor is posting guidance on common issues facing employers and employees in light of COVID-19 here.

Should you have any questions regarding these issues, or require assistance in crafting your company’s COVID-19 response, please contact Colette Kopon at [email protected] or 312-506-4459, Andy Kopon at [email protected] or 312-506-4470, or George Sweeney at [email protected] or 312-506-4462.