President Signs Coronavirus Legislation That Will Impact Employers’ Leave Polices

The Families First Coronavirus Response Act, signed into law by President Trump on March 18, 2020, includes a number of provisions that will directly impact employers, in addition to public health measures.

Here are the key provisions of the legislation that will impact employers:

Emergency Paid Sick Leave

One section of the new law requires employers to provide two weeks of paid sick leave to an employee who is unable to work or telework due to a need for leave because of any of the following:

  • The employee is subject to a government or health care provider’s quarantine or isolation order related to COVID-19;
  • The employee is experiencing the symptoms of coronavirus and is seeking a medical diagnosis;
  • The employee is caring for an individual (including but not limited to a family member) who is subject to a government or a health care provider’s quarantine or isolation order; or
  • To care for a child whose school is closed or whose regular care provider is unavailable due to coronavirus.

The paid sick leave provisions in the law apply only to private sector employers with fewer than 500 employees, and certain public sector employers. The paid sick leave protections apply to employees regardless of how long they have been employed.  Health care providers and first responders may be excluded from coverage.

The amount of pay for the mandated sick leave must be the employee’s full regular rate of pay (capped at $511 per day and $5,110 in the aggregate), except when leave is taken to care for another individual who is quarantined or a child whose school is closed or care is unavailable, in which case pay must be at least 2/3 of the employee’s regular rate (and capped at $200 per day and $2,000 in the aggregate).

The Department of Labor is to issue a notice that must be posted by employers.

Amendments to FMLA

With regard to the Family and Medical Leave Act, the new law does not go as far as the original House bill, but still expands the circumstances that qualify for FMLA leave to address the current coronavirus health threat. Like the paid sick leave provisions, the new FMLA expansion applies only to private sector employers with fewer than 500 employees, plus covered public employers.  However, employers with fewer than 50 employees (which is the threshold for the traditional FMLA requirements) will be able to apply for an exemption if compliance would jeopardize the viability of the business as a going concern.

The legislation amends the FMLA as follows:

  • Employees employed for at least 30 days will be eligible for FMLA leave if the employee is unable to work or telework due to a need to care for a son or daughter under 18 years of age due to closure of the child’s school or unavailability of a regular child care provider.
  • The first two weeks of FMLA leave for the above purposes may be unpaid (but see the Paid Sick Leave provisions above), and thereafter employers must provide paid FMLA leave for these purposes, at a rate of no less than 2/3 of the employee’s regular rate of pay (not to exceed $200 per day or $10,000 in the aggregate).
  • Employees may elect to substitute paid leave (such accrued vacation or PTO) for the two weeks of unpaid FMLA leave, but employers may not require such substitution.
  • The FMLA’s normal job protection rules will apply to leave taken for the above purposes, except for employers with fewer than 25 employees, where the employee’s position does not exist due to economic conditions or other changes caused by the public health emergency.
  • Employees must give notice of leave for the above purposes only where it is foreseeable, and then only as is practicable.

Both the new paid sick leave and the FMLA amendments take effect 15 days after enactment (April 2), and will sunset on December 31, 2020.

Unemployment Benefits and Tax Credits

The House bill also would provide additional funding for employee unemployment benefits and would allow employers various tax credits to offset the cost of the mandatory paid sick leave.

This law is likely the first of a number of measures to address the coronavirus emergency. Fox Swibel will continue to monitor these changes and stands ready to advise clients during this unusual time.  If you have questions about employers’ obligations and best practices in light of COVID-19, please contact Fox Swibel’s employment law department leaders, Steve Brenneman or Kelly Smith-Haley, or the Fox Swibel attorney with whom you regularly work.

This article was co-written by Steven L. Brenneman  and Kelly Smith-Haleywho are Chair and a Partner, respectively, of the Employment Law Group at Fox Swibel and editors of the Illinois Employment Law Letter.