The Families First Coronavirus Response Act: Employer FAQs

The recently enacted Families First Coronavirus Response Act (HR 6201) requires certain employers to provide emergency paid sick leave and paid FMLA leave to their eligible employees for absences related to COVID-19. The new law takes effect April 1, 2020 and will remain in place through December 31, 2020. Employers should familiarize themselves with these new obligations and benefits immediately and consider what operational changes may be needed. To help employers come into compliance with the new law, we have answered the top questions relating to the Act.

Although interrelated, there are some differences between the Emergency Paid Sick Leave and Emergency FMLA provisions, which are summarized below.

 

1. Who is covered?

Employers: Covered employers under the Act include private employers with less than 500 employees and certain public employers. Under the emergency FMLA provisions, small businesses with fewer than 50 employees may be exempted if complying with the paid leave requirements would jeopardize the viability of the business. 

Employees: For Emergency Paid Sick Leave, covered employees generally include all full-time and part-time employees, regardless of tenure. 

To be eligible for paid emergency FMLA leave, employees must have been employed by the employer for at least 30 calendar days. Additionally, employers may exclude certain health care providers and emergency responders from the definition of eligible employees.

 

2. When are employees eligible for paid leave? 

Paid Sick Leave: Covered employees are entitled to paid sick leave if they are unable to work or telework due to any of the following conditions: 

• The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
• The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
• The employee is caring for an individual who is subject to an order described in item 1 above or has received advice as described in item 2 above.
• The employee is caring for a son or daughter because the son’s or daughter’s school or place of care has been closed due to COVID-19 precautions.
• The employee is experiencing “any other substantially similar conditions” as specified by the Secretary of Health and Human Services.

Paid FMLA Leave: Eligible employees are entitled to emergency FMLA leave if they are unable to work or telework due to any of the following condition: 

• The employee is caring for a son or daughter because the son’s or daughter’s school or place of care has been closed due to COVID-19 precautions.

 

3. How much paid leave is required?

Paid Sick Leave: Full-time employees are eligible for up to 80 hours of paid sick leave and part-time employees are eligible for up to their two-week equivalent of work hours of paid sick leave calculated based on their regular rate of pay, or the applicable state or Federal minimum wage, whichever is highest. Paid sick leave is paid at the following rates per employee: 

• 100% for leave taken for the following reasons, limited to $511 daily and $5,110 total.
  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
• 2/3 for leave taken for the following reasons, limited to $200 daily and $2,000 total.
  • The employee is caring for an individual who is subject to an order described in item 1 above or has received advice as described in item 2 above.
  • The employee is caring for a son or daughter because the son’s or daughter’s school or place of care has been closed due to COVID-19 precautions.
  • The employee is experiencing “any other substantially similar conditions” as specified by the Secretary of Health and Human Services.

Paid FMLA Leave: Full-time employees are eligible for up to 10 weeks of paid emergency FMLA leave and part-time employees are eligible for paid FMLA leave for the number of hours that the employee is normally scheduled to work over the leave period. The Emergency FMLA does not pay for the first two weeks (10 days) of leave, but employees may use available paid leave, including paid leave under the Emergency Paid Sick Leave Act for those ten days.  

Paid FMLA leave is calculated based on the higher of their regular rate of pay, or the applicable state or Federal minimum wage, whichever is higher, and paid at the following rate per employee:

• 2/3 for leave taken for the following reason, limited to $200 daily and $10,000 total.
  • The employee is caring for a son or daughter because the son’s or daughter’s school or place of care has been closed due to COVID-19 precautions.

Conditions	Paid Sick Leave (full-time employees)	Paid FMLA Leave (full-time employees)
1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.	YES Up to 80 hours paid at 100%, up to $511 daily and $5,110 total	NO
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19	YES Up to 80 hours paid at 100%, up to $511 daily and $5,110 total	NO
3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.	YES Up to 80 hours paid at 100%, up to $511 daily and $5,110 total	NO
4. The employee is caring for an individual who is subject to an order described in item 1 above or has received advice as described in #2 above.	YES Up to 80 hours paid at 2/3, up to $200 daily and $2,000 total	NO
5. The employee is caring for a son or daughter because the son’s or daughter’s school or place of care has been closed due to COVID-19 precautions.	YES Up to 80 hours paid at 2/3, up to $200 daily and $2,000 total	YES Up to 10 weeks paid at 2/3, up to $200 daily and $10,000 total
6. The employee is experiencing “any other substantially similar conditions” as specified by the Secretary of Health and Human Services.	YES Up to 80 hours paid at 2/3, up to $200 daily and $2,000 total	NO

 

4. Can employees be required to use other paid leave first? 

No, employees are entitled to use paid sick leave or paid FMLA leave provided under the Act before they are required to use any other paid leave benefit provided by the employer including vacation, regular sick leave or other paid time off.

 

5. Are employers required to notify employees? 

Yes, employers are required to post this Department of Labor notice in the workplace. Employers may also want to consider adopting a temporary policy, that ends when the law sunsets on December 31, 2020, to clarify the coordination of these new benefits with their existing leave benefits. 

 

6. Where can employers find additional information?

• Department of Labor Families First Coronavirus Response Act Q&A 
• Department of Labor Families First Coronavirus Response Act: Employee Paid Leave Rights

 

For questions, feel free to contact:

John Kreutzer, john.kreutzer@bullivant.com

Sarah Bowen, sarah.bowen@bullivant.com