President Signs Coronavirus Relief Bill Temporarily Expanding FMLA and Extending Paid Sick Leave
March 19, 2020
On Wednesday, March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (Act), a coronavirus (COVID-19) relief bill, passed by the U.S. Senate just hours earlier. The Act had been passed by the U.S. House of Representatives on March 14 and then amended significantly on March 16 via House Resolution 904. The Act will take effect April 2, 2020 and expire on December 31, 2020.
Many provisions of the Act are directly applicable to employers, including an Emergency Family and Medical Leave Expansion Act, an Emergency Paid Sick Leave Act, as well as the availability of payroll tax credits to businesses that provided paid leave benefits as required by the Act
The following provides a summary focusing on the Act’s temporary expansion of the FMLA and paid sick leave provisions. Note that the Act has several other provisions, including a section applicable to health plans, requiring the coverage of COVID-19 testing, among certain other related services at no charge, as well as provide for economic assistance to continue funding for student nutrition programs, and certain low-income groups impacted by the virus.
Emergency Family and Medical Leave Expansion Act
The Act amends the Family and Medical Leave Act (FMLA) to provide up to 12 weeks of job-protected leave for covered employees of covered employers who are unable to work (or telework) due to having to care for a son or daughter under the age of 18 as a result of either a school closure or the unavailability of childcare because of a public health emergency (defined as an emergency with respect to the COVID-19 virus that has been declared by a Federal, state or local authority).
- Covered Employee: Any employee who has been employed for at least 30 calendar days is covered although employers have the option of excluding employees who are health care providers and emergency responders.
- Covered Employer: Generally, this applies to companies with fewer than 500 employees (who are also otherwise covered employers under the FMLA).
Note: Some smaller businesses with fewer than 50 employees may be excluded if the employer can show the leave would jeopardize the viability of their business.
- Paid Leave Amount- first 10 days: The first 10 days of the leave are without pay. During the is time, an employee may (but is not required to) use any other leave available to him or her. Employees cannot be required to use paid leave during this time period.
- Paid Leave Amount- after 10 days: For the remaining 10 weeks, employees must receive at least 2/3 of their regular pay for the number of hours they would normally be scheduled to work, up to a maximum of $200 per day and $10,000 total. Special contribution requirements apply for employers whose employees are subject to a multi-employer collective bargaining agreement.
- Reinstatement Rights: Generally, the same rights apply as those under traditional FMLA. However, employers with less than 25 employees may not have to provide reinstatements should:
- The position held no longer exist because of changes caused by economic conditions or other changes in operating conditions that affects employment caused by COVID-19.
- Notwithstanding, the employer is required to make reasonable efforts to return the employee to an equivalent position as he or she had when the leave commenced, with equivalent pay, benefits, and other equivalent terms of employment, and must make efforts to contact the employee of any opportunity that becomes available within the year following the date the employee’s leave period ended and he or she should have returned to work.
Emergency Paid Sick Leave Act
The Act also provides for two weeks of paid sick leave for employees of covered employers. As stated above, covered employers may be compensated for the costs of providing leave benefits under this Act through the availability of payroll tax credits. The U.S. Treasury is also expected to use its regulatory authority to advance funds to some small businesses to cover the cost of providing paid sick leave. Furthermore, paid sick leave under the Act does not preempt state and local paid sick leave requirements.
- Covered Employee: Any employee of a covered employer is eligible regardless of length of employment, although employers have the option of excluding health care providers and emergency responders.
- Covered Employer: Most companies with fewer than 500 employees, and Federal, state, and local government entities, regardless of size, employing at least one employee.
- Reasons for Leave: Leave must be made available immediately to an employee who:
Paid Sick Leave Amount: Full-time employees receive 80 hours of sick leave. Part-time employees receive a prorated amount.
- Is subject to a Federal, state, or local quarantine or isolation order related to COVID-19,
- Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19,
- Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis,
- Must care for a family member under an order or health care provider’s advice to quarantine or self-isolate,
- Is caring for his or her child whose school or childcare facility has closed (or whose childcare provider is unavailable) due to COVID-19, or
- 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.
Employee Responsibilities: An employee must give notice to the employer and cannot be required to find a replacement during his or her sick leave.
Employer Responsibilities: An employer must post a notice to be made available by the Federal government. It is also unlawful for an employer to retaliate, discharge, or otherwise discriminate against an employee eligible to take leave.
- An employee may be paid either 100 percent or 2/3 of his or her regular pay, depending on the reason for the sick leave. Payments can be capped either at:
- $511 per day and $5,110 total, for leave reasons (1)-(3) above, or
- $200 per day and $2,000 total, for reasons (4)-(6).
- Sick leave doesn’t carry over from year to year, and there is no payout upon separation of employment.
- Employers with employees subject to a multi-employer collective bargaining agreement may comply by making appropriate contributions to the fund or program it normally does pursuant to the agreement.
The above is intended to highlight key provisions of the Act with respect to the legislation’s provisions expanding FMLA and creating a Federal paid sick leave program. Your Burnham team is here to keep you in the know as more guidance becomes available. Please visit our dedicated Burnham COVID-19 Resource Center at https://www.burnhambenefits.com/covid-19 for the most up-to-date information.
For additional information, please contact your Burnham Benefits Consultant or Burnham Benefits at 949-833-2983 or firstname.lastname@example.org.
Burnham Benefits does not engage in the practice of law and this publication should not be construed as the providing of legal advice or a legal opinion of any kind. The consulting advice we provide is intended solely to assist in assessing its compliance with the Patient Protection and Affordable Care Act and other applicable federal and state law requirements, and is based on Burnham Benefit’s interpretation of federal guidance in effect as of the date of this publication. To the best of our knowledge, the information provided herein, and assumptions relied on, are reasonable and accurate as of the date of this publication. Furthermore, to ensure compliance with IRS Circular 230, any tax advice contained in this publication is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the United States Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter.
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