David B. Walston
Christian & Small LLP
Birmingham, Alabama
On March 14, 2020, the U.S. House of Representatives passed the Families First Coronavirus Response Act. The bill goes to the Senate today and it is expected to pass with few, if any, changes. The President has stated he will sign the bill when presented to him. The Act goes into effect 15 days after enactment. Many employers are unsure of what the implications are for their particular company. We hope this discussion can provide clarification.
Emergency Family Medical Leave Expansion Act
One section of the Act, “Emergency Family Medical Leave Expansion Act,” temporarily expands the coverage of the Family Medical Leave Act. Importantly, the Emergency Family Medical Leave Expansion Act DOES NOT apply generally to all requirements of the Family Medical Leave Act. Its provisions are limited to specific circumstances related to the Coronavirus.
The Emergency Family Medical Leave Expansion Act applies to employers with 500 or fewer employees.1 An employee is eligible for Coronavirus-related leave after 30 days of employment without regard to the number of hours worked during that period.2 Full and part-time employees are covered by the Act.
The Act requires an employer to provide up to 12 weeks of “Public Health Emergency Leave.” The first 14 days of leave may be unpaid. For any required leave beyond those 14 days, an employer is required to pay the employee 2/3 of the employee’s regular rate of pay for the number of hours the employee would normally be scheduled to work.
An employee is eligible for Public Health Emergency Leave under the following circumstances:
1. If a public official or health care provider recommends or orders leave because the physical presence of an employee on the job would jeopardize the health of others because of the employee’s exposure to, or exhibition of the systems, of the Coronavirus. The employee must be unable to perform the functions of his or her position AND comply with such a recommendation or order to qualify.
2. To care for a family member if a public official or a health care provider makes a determination that the presence of the family member in the community would jeopardize the health of others because of the family member’s exposure to, or exhibition of the systems, of the Coronavirus.
3. To care for son or daughter under 18 years of age if the school has been closed or childcare provider is unavailable due to an emergency related to the Coronavirus declared by a Federal, State or local authority.
The EFMLA is effective from the date of enactment through December 31, 2020.
The Emergency Paid Sick Leave Act also applies to employers with 500 or fewer employees. An employee is eligible for Emergency Paid Sick Leave on the first day of employment.
Qualifying events under the Emergency Paid Sick Leave Act are:
1. To self-isolate because the employee is diagnosed with coronavirus.
2. To obtain medical diagnosis or care if the employee is experiencing the symptoms of coronavirus.
3. If a public official or health care provider recommends or orders leave because the physical presence of an employee on the job would jeopardize the health of others because of the employee’s exposure to, or exhibition of the systems, of the Coronavirus. (Note Unlike the Emergency Family Medical Leave Expansion Act, there is no requirement that the employee be unable to perform the functions of his or her position AND comply with such recommendation or order to qualify.)
4. To care or assist a family member of the employee who is self-isolating due to Coronavirus or is experiencing symptoms and needs to obtain medical care.
5. To care for a family member of an employee if a public official or a health care provider makes a determination that the presence of the family member in the community would jeopardize the health of others because of the family member’s exposure to, or exhibition of the systems, of the coronavirus.
6. To care for a child whose school or place of care has closed, or the childcare provider is unavailable due to coronavirus.
Full-time employees are entitled to 80 hours of pay while part-time employees are entitled to pay based on the hours the employee works, on average, over a 2 week period. Emergency Paid Sick Leave is in addition to an employer’s existing paid leave policies and employers may not change existing policies to avoid or reduce the financial impact of the Emergency Paid Sick Leave.
The pay rate for Emergency Paid Sick Leave varies. If the Emergency Paid Sick Leave is based on the employee’s own coronavirus related condition, the employer must pay the employee’s regular rate of pay. For an Emergency Paid Sick Leave based on the coronavirus-related condition of a family member, the employee must be paid 2/3 of his or her regular rate of pay.
This article I is a summary of the bill that passed the House. We will prepare an update discussing the provisions of the final Act when signed by President Trump. In the meantime, we are available to answer any questions you may have regarding the bill as currently written.
1. The Family Medical Leave Act applies only to employers with 50 or more employees.
2. To be eligible for leave under the Family Medical Leave Act, an employee must have worked for an employer at least 1 year and performed 1250 or more hours of service in the previous 12 months.
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