On March 18, 2020, President Trump signed the Families First Coronavirus Response Act into law. Among other things, the Act is intended to provide relief to employees suffering from COVID-19 or caring for family members who may be suffering or otherwise affected by the virus. The Act directs public employers and private employers with more than 500 employees to provide emergency paid sick leave and emergency paid leave under the Family Medical Leave Act (“FMLA”), effective April 2, 2020. The law expires on December 31, 2020.

Emergency Paid Sick Leave:

Current employees are eligible for emergency paid sick leave for two weeks; there is no requirement that employees work for a certain period of time prior to eligibility. Full-time employees are eligible for 80 hours at their regular rate of pay (up to $511 per day), or two-thirds of their rate of pay (up to $200 per day) if they are taking leave to care for others (see (4), (5), and (6) below). Part-time employees are eligible based on the number of hours the employee usually works over a two-week period. For part-time employees, the same daily caps apply.

The following circumstances allow for emergency paid leave under the Act:

• (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) or has been advised as described in paragraph (2).
• (5) The employee is caring for a son or daughter of such an 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.

The paid leave provided in this Act is in addition to existing leave. Employers may not require the employee to use accrued leave under an existing sick leave policy first. Employers providing leave before the effective date of the Act will still be required to provide full leave benefits upon the effective date. Also, employees who work under a multiemployer collective agreement and whose employers pay into a multiemployer plan are also allowed to leave.

Emergency FMLA Leave:

FMLA has also been expanded to provide emergency paid leave for employees with children whose schools have been closed because of the public health emergency. 12 weeks of FMLA leave is available for those eligible employees who are unable to work in order to care for such minor children.

The first ten days of FMLA leave are unpaid, but an employee can substitute other paid leave, including emergency paid sick leave discussed above. After the first ten days, the remaining 10 weeks are paid at 2/3 of the employee’s regular rate, capped at $200 per day and $10,000. Part-time employees will be paid at 2/3 of the employee’s regular rate for the same number of hours the employee would normally be scheduled to work. Note: the paid emergency FMLA leave described in this paragraph applies only to employees with children whose schools are closed; other FMLA-related leave will not be paid.

Employers who violate the paid sick leave provisions of the Act will be considered to have failed to pay minimum wages in violation of the Fair Labor Standards Act (“FLSA”). Such employers will be subject to penalties, including back wages, liquidated damages, attorney fees, and court costs. It is also a violation of the FLSA for employers to discriminate or retaliate against employees using any leave benefits. Employers found in violation of the FLSA could also be penalized under the FMLA, including back wages, liquidated damages, fees, and court costs. Because the law applies to all employers with less than 500 employees, some small employers may find themselves suddenly subject to the requirements of the FMLA.

Once employees have finished their protected emergency FMLA leave, employers must restore employees to their prior or equivalent position. Employers with fewer than 25 employees may qualify for an exemption to this requirement if the position no longer exists because of the public health emergency, such as loss of business caused by the emergency. However, even if the employer is exempt from reinstating the employee, the employer must nonetheless undertake reasonable efforts to contact a displaced employee if an equivalent position becomes available within one year.

The Act provides a refundable payroll tax credit to covered employers. Specifically, employers actually providing paid sick leave will be allowed to take a tax credit against payroll taxes in an amount equal to 100 percent of Paid Family Leave or Paid Sick Leave wages each quarter. 

Detection, Prevention, and Discrimination:

Employers may also be concerned about liability for workers contracting COVID-19 on the job. As this blog has discussed before, COVID-19 is unlike the common flu inasmuch as it is considered a work-related illness and should be recorded pursuant to OSHA requirements. Employers should take measures to detect COVID-19 infection and limit exposure. Beyond what certain local governments have required by the mandate, employers should isolate any employee who is suspected to have contracted COVID-19. If an employee presents fever or breathing difficulty, such an employee should seek a medical evaluation to rule out COVID-19. Both the Center for Disease Control and the Equal Employment Opportunity Commission have confirmed that employees suspected of having COVID-19 should leave the workforce and asking the employee to leave should not create disability discrimination concerns.

If an employee has or is suspected to have COVID-19, it is advisable to ask that employee the names of all other employees who worked in close proximity within the last 14 days. Any employees who have worked closely with the infected employee should be sent home as well. However, it is absolutely critical to maintain employee privacy, so employers must not broadcast the identity of any employees who are sent home.

Employers may inquire into an employee’s symptoms if there is a reasonable belief based on objective evidence that the employee may have COVID-19, but employers should only ask enough questions to decide whether the employee may be exposed. Employers may require employees to self-report to their supervisor if they become ill. However, it is not advisable to ask employees whether they have the virus if they are exhibiting no symptoms, as it may interfere with employee privacy rights. It is also not advised to ask employees whether they have come into contact with anyone who has visited specific countries, as this otherwise innocuous question may wind up creating grounds for discrimination litigation. The best method is for employers to broadcast to their employees that they should not come to work if they are exhibiting symptoms and to self-report and stay home if they are exhibiting symptoms. COVID-19 is not an excuse to run afoul of regular employee privacy concerns.

More information about the effects of the new law is available here: 

More legislation is anticipated, so employers should check our website for updates. If you have questions specific to your business needs, please contact Navigate Law Group today to schedule a consultation.