Expansion of the Family Medical Leave Act Due to COVID-19

Congress recently passed the Families First Coronavirus Response Act (the “FFCRA”), expanding the provisions of the Family Medical Leave Act, to deal with the impact of the Covid-19 virus. This new law is effective on April 2nd. The purpose is to provide extended paid sick leave for those affected by the current Pandemic.    

How It Works…

Employers with fewer than 500 employees must provide eligible employees up to two weeks of paid leave if they meet any of the following requirements and are unable to work or telework:

1.  Subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

2.  Have been advised by a health care provider to self-quarantine related to COVID-19; or

3.  Experiencing COVID-19 symptoms and are seeking a medical diagnosis.

4.  Caring for an individual who is subject to an order described in (1) or self-quarantine as described in (2);

5.  Caring for a child whose school or place of care is closed (or whose child care provider is unavailable) for reasons related to COVID-19; or

6.  Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

The compensation provided to the employee depends on the reason for their leave. Employees who qualify for leave under reasons 1, 2 or 3 above are entitled to receive their regular rate of pay for the two weeks of leave. Compensation under this section is capped at the rate of $511 per day.

Employees who qualify for leave under reasons 4, 5 or 6 above are also entitled to take paid leave for up to 10 days at 2/3 of their regular pay (or 2/3 of minimum wage, whichever is higher) with a cap of $200 per day.  

In addition, an eligible employee who falls under paragraph 5 above (caring for a child whose school is closed) may take an additional 10 weeks of paid leave at 2/3 of their regular rate or 2/3 of the minimum wage up to $200 per day for a maximum of $10,000.

Where an employee has a varying work schedule week to week, the employee’s compensation will be based on their average hours calculated over the past 6 months.

What Employers Need to Know…

An employer who has fewer than 50 employees may be exempt from the requirements of the law if it can show that complying with the law would jeopardize the business as a going concern.

There are also other exemptions that apply to employers employing healthcare workers and first responders.

Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. For more information, please see the Department of the Treasury’s website.

Employers may not discharge, discipline or otherwise discriminate against an employee taking leave under the Act.  Penalties and enforcement are set forth in the Fair Labor Standards Act, 29 U.S.C. 216; 217.  Because this is new and the landscape is changing quickly, there will be guidance from the Department of Labor in the future and portions of the Act can be up for interpretation.  As of this writing there are 5 amendments in Congress that may have an effect on the way the current Act is written.  

Employers must also post a notice of the FFCRA in a conspicuous place on their premises.

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