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UPDATE | Employer Obligations Under the ´╗┐Families First Coronavirus Response Act

March 19, 2020

Cleveland, Ohio

The Families First Coronavirus Response Act (“Act”) was recently passed by the Senate and signed into law by President Trump on March 18, 2020. The final version of the Act contains some changes compared to the version first passed by the House of Representatives on March 14, 2020, but is still designed to provide support for employees who are unable to work due to COVID-19 quarantines, school closings, and closing of childcare facilities.

The Act allows for employees to receive paid family and medical leave (FMLA) and sick leave through December 31, 2020. Both the FMLA and sick leave protections apply only to private employers with fewer than 500 employees. Critically, the final version of the Act allows for the U.S. Department of Labor to exempt small businesses with fewer than 50 employees from the Act’s requirements, but only in the Department’s discretion and where the provision would jeopardize the viability of the business to continue.
A summary of the Act’s provisions are as follows:
The Emergency Paid Sick Leave Act – applies to all employers with less than 500 employees and allows all employees sick leave as follows:
  • To be quarantined because of a coronavirus diagnosis
  • To secure a medical diagnosis if experiencing symptoms of coronavirus
  • To quarantine based on recommendation or order by physician or public health official that the employee’s physical presence on the job would jeopardize the health of others
  • To provide care for an immediate family member who is in quarantine
  • To provide care for an employee’s child due to school or childcare closure due to coronavirus
  • The employee is experiencing any other substantially similar condition specified by Health and Human Services in consultation with the Department of the Treasury and the Department of Labor
The Act entitles full-time employees to 80 hours of leave and part-time employees with leave equal to their average number of hours worked over a two-week period. An employee will be compensated at their regular rate for leave, except that they will be paid for two-thirds of their regular rate to care for a child whose school has closed. There are new caps in the final version of the Act that limit pay to employees at a maximum of $511 per day and $5,110 total. For those that are caring for a child whose school has closed, those caps are reduced to $200 per day and $2,000 total.
The Emergency Family and Medical Leave Expansion Act – a new federal emergency paid leave program will require employers with less than 500 employees to provide up to 12 weeks of job-protected leave for those unable to work because they have been diagnosed with coronavirus and/or are quarantined, are caring for a family member who was exposed or has symptoms of coronavirus, or are caring for a child due to coronavirus-related school closings. Leave will be unpaid for the first ten (10) days, unless the employee chooses to substitute paid time off. After the first ten (10) day period, employers will be required to provide employees with partially paid leave at two-thirds of the employee’s regular rate. Moreover, the employer must restore the employee to the same or equivalent position after leave expires. This provision does not apply to an employer with fewer than 25 employees if the employee’s position has been eliminated due to economic conditions caused by the public health crisis during the leave period.

Now that the Act has been signed into law, it will go into effect no later than fifteen (15) days following the President’s signature (or by Thursday, April 2, 2020).

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