Brian Farrington, head of the Cowles Thompson Employment Law section, wrote the following summary of the new employee rights created by the Families First Coronavirus Response Act.
The requirements go into effect 15 days after passage — or April 1, 2020. (Per and update from the Dept. of Labor clarifying the start date.)
The new Families First Coronavirus Response Act (H.R.6201 — 116th Congress (2019-2020)) contains (among many other provisions) several important new rights for employees. It amends the Family Medical Leave Act (FMLA) to add a new category of eligible employees, and it includes a new Emergency Paid Sick Leave Act (EPSLA). The new provisions are summarized below, but keep in mind that there will be many questions unclear or unanswered until the government issues guidance.
Family Medical Leave Act
FMLA currently allows eligible employees of a covered employer to take up to 12 weeks per year of unpaid, job-protected leave for their own serious health condition or to care for a parent, child, or spouse with a serious health condition. A covered employer is one with 50 employees on each workday in at least 20 weeks in the current or preceding calendar year. An eligible employee is one who has worked for the employer for 12 months, works at a location where the employer has at least 50 employees within 75 miles, and who has worked at least 1,250 hours in the 12 months preceding the need for leave.
The Coronavirus Response Act adds another category of eligible employees, those who have a “qualifying need related to a public health emergency,” but only for employees of employers with fewer than 500 employees. With respect to leave, this means:
- An employee who is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the childcare provider of such son or daughter is unavailable due to a public health emergency (i.e., the current epidemic).
Note that the usual eligibility requirements are waived for such newly eligible employees—they need only have worked for the employer from whom leave is requested for 30 calendar days. Note also that this new category of employees with a qualifying need related to a public health emergency only applies to employers of fewer than 500 employees.
If such leave is given, the first 10 days of leave are unpaid, although employees may substitute accrued paid leave. After that, their FMLA leave is paid at the following rate: not less than two-thirds of an employee’s regular rate of pay for the number of hours the employee would otherwise be normally scheduled to work. For employees on irregular schedules, they should be paid for the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type. If the employee did not work over such period, the employee should be paid for the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.
In no event shall such paid leave exceed $200 per day and $10,000 in the aggregate.
The employee must be reinstated into their previous position when leave ends, with certain limitations. Employers of fewer than 25 employees may be eligible for waiver of reinstatement under certain conditions.
Enforcement
FMLA, including these changes, is enforced by the US Dept. of Labor, Wage and Hour Division, and employers who violate the law will be subject to both administrative and judicial enforcement actions. Individual employees who believe they are aggrieved by employer’s actions can bring their own lawsuits for equitable relief including reinstatement and lost wages, liquidated damages equal to any back wages due, and attorney fees.
Emergency and Paid Sick Leave
The new law provides for up to 80 hours of paid sick leave (for part-time employees, the number of hours the employees average in a 2-week period) for the following reasons:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
- The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
- The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID–19 precautions.
- 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.
The paid sick time under this new law is available immediately, regardless of how long the employee has been employed by an employer. An employee may first use the new paid sick time, and an employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the new paid sick time.
The new sick time must be paid at the employee’s current regular rate. It cannot be less than the higher of the federal minimum wage or any applicable state or local minimum wage.
There are limits to the amount of emergency paid sick leave an employer must pay for. For reasons 1, 2, or 3 above, the limits are $511 per day and an aggregate total of $5,110. For reasons 4, 5, and 6, the limits are $200 per day and an aggregate total of $2,000. For part-time employees or those on irregular schedules, the number of hours of pay is determined either by the average workweek for the previous 6 months, or by the employee’s reasonable expectation of how many hours he/she would work.
Posters giving notice of these requirements will be issued by DOL shortly, and guidance on the requirements will be issued within 15 days.
Violations of the Emergency Paid Sick Leave Act are treated as violations of the Fair Labor Standards Act, and the enforcement provisions of that Act are available. These include back wages, liquidated damages, and equitable relief such as reinstatement. FLSA legal actions can be brought by either the Dept. of Labor or aggrieved employees.
For more information on this and other Employment-related legal matters, contact Brian Farrington or Casey Erick.
See our COVID-19 Quick Reference page for additional articles.
