Federal Government Passes “Families First Coronavirus Response Act”

Posted: /in /by

On March 18, 2020, President Trump approved House Bill 6201, titled the “Families First Coronavirus Response Act”.  The law has two new acts providing leave time: the “Emergency Family and Medical Leave Act” and the “Emergency Paid Sick Leave Act”.  Public employers and private employers with fewer than five hundred (500) employees must provide leave consistent with these Acts.

Emergency Family and Medical Leave Act

The Emergency Family and Medical Leave Act requires covered employers to provide up to twelve (12) weeks of job-protected leave for a qualifying need related to a public health emergency.  A qualifying need is restricted to cases where an employee is unable to work or telework due to a need to care for a minor child if that minor child’s school or care provider has been closed due to a public health emergency with respect to COVID-19 as declared by a federal, state or local authority.

The first ten (10) days[1] of leave under the Emergency Family and Medical Leave Act may be unpaid.  An employee may elect to utilize accrued paid leave time during the period of time that the employee would otherwise be unpaid.

The remaining leave time after the first ten (10) days shall be paid:

  1. at a rate no less than two-thirds (2/3) the employee’s regular rate of pay;
  2. for the number of hours the employee would otherwise be normally scheduled to work; and
  3. no more than $200 per day and $10,000 in the aggregate.

If an employee’s work hours tend to vary from week to week, the employer shall use a number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type.  If the employee did not work over such 6-month period, the employer shall use the employee’s reasonable expectation at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

Employers that are a party to a multiemployer collective bargaining agreement may, consistent with bargaining obligations, fulfill their obligations under the Emergency Family and Medical Leave Act by making contributions to a fund based on the hours of paid sick time each of its employees is entitled to receive.  This is likely a mandatory subject of bargaining if one or more Union requests to bargain over such a fund.

Employers with employees that are health care providers or emergency responders may elect to exclude such employees from the benefits of the Emergency Family and Medical Leave Act.

The Emergency Family and Medical Leave Act is set to expire on December 31, 2020.

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act requires employers to provide paid sick time to employees unable to work or telework because:

  1. The employee is subject to a 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 an order as described in subparagraph 1 above or has been advised as described in paragraph 2 above.
  5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
  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. (As of the date of this advisory, there has yet to be a list of specified conditions published.)

Full-time employees are entitled to eighty (80) hours of paid sick time, and part-time employees are entitled to a number of hours equal to the number of hours that such employee works on average over a two (2) week period.  Paid sick time is capped at $511 per day or an aggregate of $5,110 for a use consistent with paragraphs 1, 2 , and 3 above, and $200 per day and $2,000 in the aggregate for a use consistent with paragraphs 4, 5, and 6 above.  Employers cannot require an employee to exhaust other paid leave before using the paid sick time under this Legislation.

Employers will also be required to post a notice containing the requirements of this Act in a conspicuous place.  The Secretary of Labor will publish this notice.  (As of the date of this advisory, the Secretary of Labor has not yet published the required notice.)

Employers that are a party to a multiemployer collective bargaining agreement may, consistent with bargaining obligations, fulfill their obligations under the Act by making contributions to a fund based on the hours of paid sick time each of its employees is entitled to.  This is likely a mandatory subject of bargaining if the Union requests to bargain over such a fund.

The Emergency Paid Sick Leave Act is set to expire on December 31, 2020.

Our office is closely monitoring federal and state guidance and legislation for further developments related to COVID-19.  If you have any questions, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

[1] Although the statute is ambiguous as to whether these are work days or calendar days, it is likely that the days will be considered to be work days. Please consult a VDH attorney with specific inquiries.