March 20, 2020

H.R. 6201 Families First Coronavirus Response Act

On March 18, 2020, the Senate passed the Families First Coronavirus Response Act that was presented to them following its passage in the House the prior week, and President Trump swiftly signed it into law. In addition to providing extra funding to certain public support programs, the law has a major impact on all employers with 500 or fewer employees throughout the United States. It expands the Family Medical Leave Act as well as mandating required two weeks of paid time off in public health emergencies and funding unemployment compensation for states that meet the criteria for support. To comfort the employers who may be worried about the impact to their business, the Act does provide that an employer with 500 or fewer employees required to provide leave under this Act will be eligible for a 100% refundable payroll tax credit on wages paid for leave.

Before the Breakdown, Please Note these exemptions! This Act has an exemption for employers of healthcare workers and first responders. These employers can choose to opt out of the FMLA expansion and the emergency paid sick time requirement. Also, under both the FMLA expansion and the emergency paid sick time, the Secretary of Labor has the authority to exempt employers of healthcare workers and first responders and small businesses with fewer than 50 employees from the requirements of these acts. However, the small businesses would have to show that complying with the requirements would jeopardize the viability of the business going forward. Now on to the details:

Emergency Family Medical Leave Expansion Act

The expansion for FMLA is not as broad as some expected. It is effective 15 days after March 18, 2020 and will expire on December 31, 2020. Here are the high points:

  • Who does this apply to?
    • Employer- The Employer threshold is fewer than 500 employees. This means that the largest companies do not have to worry about this applying to them.
    • Employee- Eligible employees are any who have worked for the employer for at least 30 days.
  • When does it apply?
    • This paid leave is only for the situation where an employee is unable to work (or telework) specifically to care for his or her son or daughter under age 18 whose school or place of care has been closed or their normal child care provider is unavailable due to the public health emergency, which is limited to COVID-19.
  • Leave Requirements- How long is the leave? How much is paid?
    • Right now, the leave is the same amount as typical FMLA leave- 12 weeks.
    • The first 10 days of the leave will be unpaid. Following that time, the employee is entitled to two-thirds of his or her regular pay for each day that the employee takes.
    • For hourly employees, the regular rate is based on the number of hours he or she would otherwise be normally scheduled to work. Another calculation process is provided for any employees with a fluctuating schedule.
    • Pay Cap– Of note there is a cap to the amount paid. In no event will the pay exceed $200 per day and $10,000 in the aggregate.
    • To take this leave, an employee must simply give notice of the need for leave as practicable.
    • There are no details yet as to what forms should be used for this process and if the regular FMLA forms will suffice.
  • Restoration of Position Requirement
    • Employers with fewer than 25 employees are not required to restore employees to their positions or equivalent positions if:
      1. The position no longer exists due to economic changes or other operating changes that affects employment and was caused by a public health emergency AND
      2. The employer makes reasonable efforts to restore the position or an equivalent one with the same benefits, pay, and other terms and conditions of employment.
      3. If those reasonable efforts fail, then the employer must contact the employee if a position becomes available in the next year following the conclusion or leave or 12 weeks after the leave commence, whichever is earlier.

Emergency Paid Sick Leave Act

This section of the Act is effective 15 days after March 18, 2020, and made available to covered employees immediately. As with the FMLA expansion, this time expires on December 31, 2020.

  • Who does it apply to?
    • Employer-
      • Private employers with 500 or fewer employees;
      • Public agencies or any other entity that is not a private entity or individual who employ 1 or more employees
      • Both private employers and public agencies are defined as those engaging in commerce
    • Employee– There is no requirement for how long the employee needs to be employed to receive this benefit, but he or she must fall into one of the below situations to be eligible:
      1. Subject to a Federal, State, or local quarantine or isolation order related to coronavirus;
      2. Has been advised by a healthcare provider to self-quarantine due to coronavirus;
      3. Experiencing symptoms of coronavirus;
      4. Caring for an individual who is subject to order described in (1) or has been advised as described in (2)
      5. Caring for a child under the age of 18 because of school closings or an unavailable childcare provider due to coronavirus; or
      6. Experiencing a similar condition specified by the Secretary of Health and Human Services.
  • Time-Off: How much time?
    • Employers are required to provide 80 hours of full paid sick leave to full-time employees. The hours paid for part-time employees is determined by looking at their average number of hours over a normal 2-week period. Another calculation process is provided for any employees with a fluctuating schedule.
    • These hours do NOT carryover to 2021.
    • This sick time is on top of other leave and vacation benefits the employer already provides.
    • Prohibitions!
      • Employers are prohibited from requiring an employee to exhaust their other benefits before using this paid sick time.
      • Employers are also prohibited from requiring the employee to find a replacement for their hours in order for them to take the time off.
    • Time-Off: How much is paid?
      • There are 2 pay caps for this paid sick time.
        • For employees who take leave under eligibility circumstances (1), (2), or (3), employers would be required to pay their full wages; however, those wages could not exceed $511 per day and $5,110 in the aggregate.
        • For employees who take leave under eligibility circumstances (4), (5), or (6), employers would be required to employees two-thirds of their wages; however, those wages could not exceed $200 per day and $2,000 in the aggregate.
  • Notice Posting Requirement
    • Each employer must post and keep posted, in a conspicuous place on the premises of the employer where notices to employees are customarily posted, a notice of the requirements of this Act.
    • This Model Notice will be provided by the Secretary of Labor 7 days after March 18, 2020.
  • Retaliation/Discrimination Clause
    • Employers are NOT allowed to retaliate against any employee who takes paid sick time.
    • They are NOT to discharge, discipline, or in any other manner discriminate against any employee who:
      • takes leave according to this Act; and
      • Is involved in any way with an action regarding this Act
    • Employers who willfully violate this clause will be considered in violation of section 15(a)(3) of the Fair Labor Standards Act and subject to penalties under sections 16 and 17 of the FLSA.
  • Enforcement
    • Employers who fail to pay the required sick leave will be treated as if they failed to pay minimum wages in violation of the Fair Labor Standards Act and subject to penalties under sections 16 and 17 of the FLSA.

– Morgan Middleton is a 2019 graduate of Mississippi College School of Law who was admitted to the Mississippi Bar in September 2019. Prior to her legal education, she worked for multiple years in human resources earning her certification as a Professional in Human Resources from the Human Resource Certification Institute. Her practice with ACB is focused on the areas of worker’s compensation defense and client consultations on employment-related matters.  You can contact her directly at 601.707.8791 or