March 23, 2020

By: Robbins, Salomon & Patt, Ltd.

A new federal law, called the Families First Coronavirus Response Act, was recently passed. It requires employers to give paid sick leave to their employees related to the COVID-19 virus. The law takes effect April 2, 2020. Another new law, called the Emergency Family and Medical Leave Expansion Act, expands family and medical leave coverage.

Who Is Covered?

Employers with less than 500 employees. Businesses of less than 50 employees may be exempt if the Secretary of Labor decides the new requirements “would jeopardize the viability of the business as a going concern.”

Employees employed 30 days are covered, but health-care providers and emergency responders may be exempt. The Department of Labor is to adopt regulations.

What Is Required?

Eligible employees must be given up to 12 weeks – the first 10 days unpaid but the remainder paid – if they are unable to work, or need to care for the employee’s minor child whose school or daycare is closed or whose child-care provider is unavailable due to COVID-19.

Even though the first 10 days are unpaid, employees may substitute earned, paid leave for unpaid leave. Leave is paid at two-thirds the employee’s pay for up to $200 per day or $10,000 total.

Full-time employees may take up to 80 hours of paid leave for a qualified reason. Full-time employees receive the average number of hours they normally work in a two-week period. Part time employees may take the number of hours that they work over a two-week period. Leave is available for immediate use.

Employers also must post a notice explaining the law.

Reasons for Leave

There are six reasons for emergency paid sick leave under the law:

  1. The employee is subject to a legal quarantine or isolation order;
  2. The employee has been advised to self-quarantine;
  3. The employee is symptomatic and seeking a diagnosis;
  4. The employee is caring for a person who is subject to a legal quarantine or isolation order or who has been advised to self-quarantine (as described in Reasons 1 and 2);
  5. The employee is caring for a son or daughter whose school, day care is closed or child-care provider is unavailable due to COVID-19 precautions; or
  6. The employee is experiencing any other “substantially similar condition” specified by the Secretary of Health and Human Services.

Rate of Pay on Leave

Employees taking leave for their own sickness (Reasons 1-3) are paid at the employee’s regular hourly rate, up to $511 per day ($5,110 total).

Employees caring for a family member (Reasons 4-5) are to be paid two-thirds of their regular hourly pay.

Employees caring for a family member (Reasons 4-5) and employees experiencing a “substantially similar condition” as described in Reason 6 are capped at $200 per day ($2,000 total).

Although employers must pay the cost of the initial expense of the new leave requirements, the law does provide for a payroll tax credit.

What Should Employers Do?

The law does not require employers to provide paid time off to employees who were laid off prior to the law taking effect. So, many employers won’t have to comply. The new leave rules will affect employers going forward.