The following article by ICBSD Preferred Partner Davenport Evans lawyer Kalen K. Biord offers a brief explanation of the Families First Coronavirus Response Act. For more information, view the “Act” via the Congress.gov Families First Coronavirus Response Act webpage or contact Kalen K. Biord at 605-357-1231 or kbiord@dehs.com.

Effective Date; Application

On March 18, 2020, the Families First Coronavirus Response Act (the “Act”) was signed into law, and the Act will take effect not later than 15 days after enactment.  Generally, employment-related provisions of the Act will apply to private employers with fewer than 500 employees, although the Act allows the U.S. Department of Labor to adopt regulations exempting small businesses with fewer than 50 employees when the provisions of the Act would jeopardize the viability of the business as a going concern.  Currently, the provisions of the Act will apply through December 31, 2020.

Emergency Paid Sick Leave Act

The Act requires employers to provide 80 hours of paid sick leave for full-time employees, or a number of hours equal to the number of hours that a part-time employee would work, on average, over a 2-week period, to the extent such an employee is unable to work or telework for the following reasons:

1. The employee is subject to Federal, State, or local quarantine or isolation order related to COVID-19;
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. The employee is caring for an individual who is subject to Federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
5. The employee is caring for a son or daughter because the school or place of care of the son or daughter has closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 concerns; and
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.

The dollar amount payable for emergency leave varies based on the reason for the absence. If an employee requires emergency leave for the reasons set forth in subparagraphs (1), (2), or (3) above, the Act requires employers to compensate such employee at their regular rate, upon to a maximum of $511 per day ($5,110 in total).  Employees requiring emergency leave for the reasons set forth in subparagraphs (4), (5), and (6) must be compensated no less than two-thirds their regular rate, up to a maximum of $200 per day ($2,000 in total).

Within seven (7) days of enactment of the Act, the Secretary of Labor will provide a model notice that each employer is required to post in conspicuous places on the premises of the employer.

Expansion of Family and Medical Leave Act

The Act amends the Family and Medical Leave Act to require employers with fewer than 500 employees to provide paid leave if a Federal, State, or local authority declares a public emergency with respect to COVID-19. The emergency leave is generally available to an employee (1) who has been employed for at least 30 days and (2) is unable to work or telework due to a need for leave to care for a son or daughter under the age of 18 because a school or place of care has been closed, or a childcare provider is unavailable, due to the public emergency.

Notably, the Act eliminates the typical FMLA eligibility requirements where the leave is necessitated by the public health emergency related to COVID-19, and therefore appears to apply to both full-time and part-time employees.

If an employee qualifies for the protections of the Act, the first ten (10) days of such employee’s leave may be unpaid, although employees can elect to use any accrued vacation leave, personal leave, or medical or sick leave for the unpaid initial 10-day leave. Employers are required to provide paid leave for the subsequent 10 weeks at an amount not less than two-thirds of such employee’s regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work; provided, however, such amounts shall not exceed $200 per day and $10,000 in the aggregate for any employee.