NOTE: This post is being updated as new information arises. It was last updated on April 1, 2020
On March 18, the Families First Corona Response Act (HR 6201) was signed into law to address multiple issues arising out of the COVID-19 pandemic. It goes into effect on April 1.
Here is a quick guide to the employment related sections of the law and what they mean. Please do not rely on this article to make decisions or implement policies. This is an overview of key points and there’s a lot more in the law that may affect how it applies. The text of the bill is here.
Emergency Paid Sick Leave
This requires all employers with 1-499 employees to give employees paid sick leave that they can use immediately if:
• they have to stay home due to government or doctors’ orders to isolate or self-quarantine
• they have symptoms or are sick with COVID-19
• they need to care for someone who is sick or in isolation or self-quarantine
• they have to care for kids who are out of school or have no available daycare because of COVID-19 precautions.
Full time employees get 80 hours of paid sick leave. Part time employees get a pro-rata amount based on their normally scheduled hours. There is no minimum time the employee has to be employed to be eligible for this leave.
The payment is an employee’s regular rate up to $511/day and $5,110 total.
This paid sick leave is in addition to any existing paid sick leave available, whether it’s under the employer’s policy or by state or local paid sick leave laws.
The leave must be made available when the law goes into effect on April 1, 2020.
Employers will be reimbursed for this leave through payroll tax credit deductions and can take a tax credit for the rest. If the expense exceeds taxes, it will be refunded.
Analysis
This will provide many employees with an extra two weeks of income, which is welcome. However, it doesn’t look like it will be a short term pandemic. Additional assistance is necessary for both employers and employees.
The DOL just issued regulation that indicate this leave DOES apply to shelter in place orders, which is new – prior guidance indicated that it did not. Paid sick leave can also apply if schools are closed due to shelter in place orders and the employee cannot work because they are caring for a child under 18 – the employee can use 10 weeks paid leave under Emergency Family Leave (below) and use Emergency Paid Sick Leave for the first two weeks.
Prior guidance said that emergency paid sick leave generally does not apply to employees who have been laid off, furloughed, or moved to zero hours due to COVID-19 orders. Those employees are eligible for unemployment benefits. It’s not clear how this applies when the employee is still technically employed but is not working due to shelter in place orders under the new regulations because they would also be eligible for unemployment benefits.
Here are the latest regulations.
Emergency Family Medical Leave
This provides 12 weeks of protected leave for people who cannot work or telework because they need to care for their children. The coverage is broad and includes schools and daycare being closed or their regular childcare provider being unavailable for pretty much any reason due to the pandemic.
The first two weeks are unpaid and the second 10 weeks are paid. But employees can apply their two weeks of Emergency Paid Sick Leave for 12 weeks of paid leave.
Any employee who has worked for the employer for 30 days can take Emergency Family Medical Leave.
The payments are 2/3 of the employees regular rate up to $200 per day and no more than $10,000 total. Employees may use any other paid leave they have available.
The leave protections mean that employers cannot fire, retaliate, or discriminate against someone because they are on Emergency Family Medical Leave.
Again, this applies to all employers who have 1-499 employees. They can be reimbursed under the same scheme as Emergency Paid Sick Leave.
Analysis
This law only applies to employees with children under 18.
While the relief is welcome for people who need it (and believe me, they do!), it creates real inequities between employees and potentially discriminates based on age.
This leave also only applies to employees who would otherwise be working, not to employees who have been laid off, terminated, furloughed, or moved to zero hours by the employer.
While unemployment and disability benefits will be available to employees who lose their jobs, they will also need health insurance, especially now. So if employers are considering layoffs and can afford it, consider offering to pay employees’ COBRA health care benefits as part of or instead of severance. Even one or two months could encourage people to stay home and make sure they can get medical care if needed.
