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Leave Under the Families First Coronavirus Response Act

James B. Yates
3/19/20

Holding Hands, Comforting   On March 18, 2020, the U.S. Senate passed the Families First Coronavirus Response Act and President Trump signed the legislation into law shortly thereafter. The new law includes an emergency expansion of the Family and Medical Leave Act (FMLA) and emergency paid sick leave in response to workplace issues related to the COVID-19 pandemic. The FMLA expansion would provide up to 12 weeks of leave for employees unable to work (or telework) because they need to care for a son or daughter due to school or child care center closings or the unavailability of a child care provider. The emergency paid sick leave provisions provide up to 80 hours of emergency paid sick leave to full-time employees (pro-rated for part-time employees) if employees are unable to work for absences related to COVID-19 (a.k.a. coronavirus) due to:

  1. an employee being subject to a government order to isolate or quarantine or the advice of a health care provider to self-quarantine;
  2. the employee experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  3. caring for an individual subject to a government order to isolate or quarantine or who has been advised by a health care provider to self-quarantine; or
  4. to care for a son or daughter due to school or child care center closings or the unavailability of child care.

   The expanded FMLA leave benefits apply to all public and private employers with fewer than 500 employees and employees are eligible if they have been employed for at least 30 calendar days. The first 10 days of this leave may be unpaid but employees may (but are not required to) substitute paid leave. The remainder of the leave is paid at not less than two-thirds of an employee’s regular rate of pay but is capped at $200 per day or $10,000 in the aggregate. Employees need to provide notice to employers of the need for leave “as soon as practicable” when the leave is foreseeable. Employers would have to restore the employees to their former positions of employment (or equivalent position).  Employers with fewer than 25 employees are not required to restore the employee to his or her former position when the position no longer exists due to the public health emergency but only after it has made reasonable efforts to restore the employee to an equivalent position and, if unsuccessful, makes reasonable efforts to contact the employee if an equivalent position becomes available in the year following the date that the qualifying leave concludes or 12 weeks after the date that the leave commences, whichever is earlier. The Department of Labor is authorized to issue regulations to exempt certain businesses with fewer than 50 employees and exclude healthcare providers and emergency responders from leave eligibility. The law takes on April 1, 2020, and sunset on December 31, 2020.

   Emergency paid leave would also apply to all public and private employers with fewer than 500 employees and all employees are eligible without any length of service requirement. The paid leave is available immediately and an employer may not require an employee to use other forms of paid leave first. The leave is not carried over into the next year or paid out upon termination of employment. The leave is paid at the employee’s regular rate of pay for leave related to his or her own leave (subject to a $511 per day and $5,110 in the aggregate cap) and paid at two-thirds of an employee’s regular rate for leave taken to care for others or due to school and child care center closings (subject to a $200 per day and $2,000 in the aggregate cap). After the first day of use, employers may require employees to follow “reasonable notice procedures” to continue receiving the leave. The Department of Labor is authorized to issue regulations to exempt certain businesses with fewer than 50 employees and exclude healthcare providers and emergency responders from this leave eligibility. These leave provisions also take effect on April 1, 2020, and sunset on December 31, 2020.

   Should you have any questions regarding the Families First Coronavirus Response Act, please contact one of the Labor & Employment attorneys.

   Update:  The Department of Labor has posted on its website the new FMLA posters that include changes made by the FFCRA as well as frequently asked questions about the posting requirements.  

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Disclaimers:

At the date of publication the above information was correct.  It is quite possible the information above has changed as COVID-19 is a rapidly evolving situation. 

The article in this publication has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.

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