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Update on Federal COVID-19 Legislation

On March 18, The Emergency Families First Coronavirus Response Act (H.R. 6201) (the “Act”) was enacted.  The Act provides for emergency family medical leave and emergency paid sick leave.  Employers must comply on or before April 2, 2020.  Employment attorney and friend of the firm, Walker Lawrence has provided the following helpful summary of the Act:

Emergency Family Medical Leave Applies Only to Child Care Disruption

The Act significantly amends and expands The Family and Medical Leave Act (“FMLA”) on a temporary basis for employers with fewer than 500 employees, and certain public-sector employers.  The Act allows for up to 12 weeks of job-protected leave for an eligible employee (e.g., an employee must have been on the payroll for 30 calendar days) for “a qualifying need related to a public health emergency.” An employee has a “qualifying need” when the employee is unable to work or telework in order to care for a son or daughter that is out of school or unable to go to childcare due to a public emergency.

Under this Emergency FMLA leave, the first 10 days are unpaid. An employee may elect to use vacation, sick leave or other leave offered by an employer in order to be paid during the first 10 days. During the remaining 10 weeks, an employee on leave is paid at two-thirds the employee’s regular pay. The new changes cap this pay at no more than $200 per day and $10,000 in total.

This Emergency FMLA leave is job protected leave and as a result an employer must restore the employee to their prior or equivalent position once the employee returns to work. There is an exception for employers with less than 25 employees, if the position was eliminated due to changes in the business as a result of a public health emergency.

The Act also allows the Secretary of Labor to exclude from the definition of employee (1) health care providers; (2) emergency responders, and (3) to exempt small businesses (i.e. less than 50 employees) if following the Act’s requirements would jeopardize the business. The Act also allows an employer to not provide the Act’s FMLA entitlements to employees who are health care providers or emergency responders.

Finally, the changes appear to also exempt employers with fewer than 50 employees in a 75-mile radius from civil damages under the FMLA. As a result, small employers are exempt from civil damages

These Emergency FMLA leave provisions are scheduled to end on December 31, 2020.

Emergency Paid Sick Leave

The Act requires employers with fewer than 500 employees and certain public employers, to provide 10 days of emergency paid sick leave to any employee falling in one of the following categories:

  1. Employees that are subject to a government quarantine related to COVID-19;
  2. Employees that have been told by a health care provider to self-quarantine due to COVID-19;
  3. Employees that are showing symptoms of COVID-19 and seeking a medical diagnosis;
  4. Employees that need to care for an individual subject to a government quarantine related to COVID-19;
  5. Employees that need to care for a son or daughter that is out of school or unable to go to childcare due to COVID-19; or
  6. “The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”

Employees are automatically entitled to the sick leave benefits irrespective of how long they have been on the payroll. However, an employee’s sick time cannot carry over from 1 year to the next. An employer may deny health care providers or emergency responders the sick leave benefits provided by the Act.

The Act also allows the Secretary of Labor to (a) exclude health care providers from the definition of employee; (b) exclude emergency responders from the definition of employee, and (c) to exempt small business (e.g. less than 50 employees) if following the Act’s requirements would jeopardize the business.

The Act also caps paid sick leave at $511 per day ($5,110 in total) if the leave is for reasons 1- 3 above relating to the own employee’s condition and $200 per day ($2,000 in total) for leave that is taken for the reasons set forth in 4-6 above, where the employee is caring for others.

Like the FMLA provision, an employer may not retaliate against an employee who takes any emergency paid sick leave. Further, the Act treats the failure to pay sick leave as a violation of the Fair Labor Standards Act and as a result the employee would be entitled to liquidated damages and attorneys’ fees in the event of a successful lawsuit. Employers must also post, and keep posted, a notice that will be prepared and approved by the Secretary of Labor (which shall be made available within 7 days after the enactment of the Act).


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