Families First Coronavirus Response Act Now Law of the Land

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act, which will go into effect on April 2, 2020 and will last through December 31, 2020.

Among other things, the Act created the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”), both of which provide protections for employees who must take time off from work as a result of the coronavirus pandemic.

The following are highlights of each of these Acts:

EFMLA

This law applies to all employers with fewer than 500 employees, but exempts small businesses with fewer than 50 employees if the required leave would jeopardize the viability of their business.
An employee is eligible for EFMLA if he or she has worked for an employer for 30 days, and provides the employee with up to 12 weeks of job-protected leave.
EFMLA is only available to allow an employee who is unable to work or telework to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency.
The first 10 days of EFMLA is unpaid, although an employee can use any accrued PTO to cover this time. After 10 days, an employer must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled, limited to $200 per day and $10,000 total.
Part-time employees must be paid the average number of hours worked for the six months prior to the EFMLA, and employees with less than six months of service must be paid based on the number of hours the employee was reasonably expected to work at the time of hiring.
At the end of the leave, employers with more than 25 employees must restore an employee who took EFMLA to his or her prior or an equivalent position.
Employees with less than 25 employees do not have to restore an employee to his or her previous position if the position no longer exists due to an economic downturn or other circumstances caused by a public health emergency. However, the employer must make reasonable attempts to rehire the employee to an equivalent position and make efforts to restore the employee to work for up to a year following the employee’s leave.
Because the EFMLA amends the FMLA, the penalties for violation will be the same as those under the FMLA (i.e., back pay, liquidated damages, attorneys’ fees).

EPSLA

The law applies to employers with fewer than 500 employees.
This law provides employees who are unable to work or telework with paid sick leave for any of the following reasons:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19, or caring for an individual who is subject to such an order;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19, or is caring for a person who has been advised;
- The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis;
- The employee is caring for a child if the child’s school or place of care has been closed or is unavailable due to COVID–19 precautions.
Full time employees are eligible for 80 hours of paid sick leave, and part time employees are eligible for the average number of hours the employee typically works in a two week period.
Paid sick time stops at the beginning of the employee’s first scheduled work shift immediately following the termination of the need for leave.
The paid sick leave wages are capped at $511 per day up to $5,110 total per employee if the leave is for their own use, and capped at $200 per day up to $2,000 total if the leave is to care for others.
Employer’s may not require employees to find a replacement to take sick leave.
There is no minimum length of service requirement before an employee is eligible for sick leave.
An employer may not require an employee to substitute paid leave for paid sick leave.
Employers may not take an adverse employment action against an employee because they took paid sick leave, or engaged in protected activity related to the use of paid sick leave (similar to the anti-discrimination statutes).
The remedy when an employer fails to provide paid sick leave are the same as those available when an employer fails to pay minimum wage in violation of the Fair Labor Standards Act (i.e., unpaid wages, liquidated damages, attorneys’ fees).
The remedy when an employer unlawfully terminates an employee in violation of the EPSLA is are the same as those available when an employer terminates an employee in violation of the FLSA (i.e., back pay, front pay, liquidated damages, attorneys’ fees).