March 19, 2020
The Families First Coronavirus Response Act, HR 6201, was signed into law last night by the President. There are two components to the law. The following summarizes both sections of the law. We continue to provide updates as they become available.
The Public Health Emergency Leave Law
This law applies to all employers with fewer than 500 employees. That isn’t a typo. The ordinary federal FMLA only applies to employers with 50 or more employees. The law allows the Secretary of Labor to issue regulations to exclude certain healthcare providers and emergency responders from eligibility.
They exempt businesses with fewer than 50 employees if the obligations could jeopardize the viability of the business. This law becomes effective 15 days from enactment last night. We do not know if those regulations will be issued before it becomes law.
The ordinary eligibility provisions for coverage under the FMLA do not apply. Employees are covered if employed for at least 30 days. They do not need to meet the ordinary requirement of working at least 1,250 hours with employment of at least 12 consecutive months.
To Qualify
The employee cannot work or work remotely because they need to care for a minor child if their school closed or regular paid care provider is unavailable because of an emergency declared by a federal, state, or local authority with respect to the coronavirus.
Employees are eligible for the same amount of FMLA leave as under the current FMLA up to 12 weeks. However, the difference is that this leave is paid after 10 days. Note that this law does not change the Maine FMLA. An employee can take the 12 weeks under this FMLA, all paid beyond 10 days.
Then, an additional 10 weeks under Maine FMLA unpaid. The employee can opt to use any accrued paid time off, vacation, sick, or other paid leave during this initial period. Including sick leave under the Emergency Paid Sick Leave Act, the other part of the new legislation.
After the first 10 days of this leave, the employer must pay the employee at a rate of 2/3 of the regular rate of pay for the number of hours normally scheduled to work. It caps the total amount to no more than $200 per day and $10,000 in the aggregate.
If an employee works a varied schedule, the employer averages the hours worked per day over the previous six months. If the employee did not work during that period of time, the average daily hours they would have been reasonably expected to be scheduled to work when hired. The law contains the right of restoration to the same or a similar job.
Employers with 25 or fewer employees are exempt from job protection if:
- The position held by the employee does not exist due to economic conditions or other changes in operating conditions that affect employment caused by a coronavirus-related emergency declared by a federal, state, or local authority.
- The employer makes reasonable efforts to restore the employee to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.
- After those reasonable efforts fail, the employer makes reasonable efforts to contact the employee about an equivalent position for one year following the conclusion of the coronavirus-related emergency or 12-weeks of coronavirus-related leave taken by the employee.
- There is a payroll tax credit for covered employers as part of the new law.
Emergency Paid Sick Leave Act
This law requires all employers with fewer than 500 employees to provide immediately-available, paid sick leave time to all employees. Regardless of how long they have been employed. Full-time employees qualify for 80 hours of paid sick leave. Part-time employees qualify for sick leave equivalent to those hours they work, on average, over a two-week period.
As with the FMLA above, the Secretary of Labor can issues regulations to exempt certain healthcare providers, emergency responders, and small businesses with fewer than 50 employees. Where the time is taken to care for a child where their school closed or childcare becomes unavailable.
This leave is available for the following reasons arising out of the pandemic:
- Self-isolate or seek medical diagnosis or treatment following diagnosis or exhibition of symptoms
- Follow healthcare or public official recommendation or orders
- Care for family members who are self-isolating or seeking medical diagnosis or treatment
- Care for children following school closures or unavailability of childcare
Notably, it does NOT appear that this leave is available if the employee is not working because the employer has prohibited the employee from reporting to work because of virus concerns. This will likely be further addressed in the expected regulations.
If the leave is taken for the employee’s own self-isolation, medical diagnosis, or treatment, the employee is entitled to paid leave at 100% of his or her regular rate of pay. If leave is taken to care for a family member or child, employers only are required to provide leave at 2/3 the regular rate of pay.
Daily & Aggregate Cap
There is a daily and aggregate cap on the totals. The sick leave cannot exceed $511 per day and $5,110 in the aggregate for an employee’s self-isolation, medical diagnosis, or treatment. It cannot exceed $200 per day and $2,000 in the aggregate for sick leave taken to care for a family member.
If an employee has something other than a typical pay arrangement, the employer calculates average daily hours worked similar to under the amended FMLA. The DOL should issue guidance to assist with these calculations.
These provisions are in addition to an employer’s existing paid leave policies. Employers are prohibited from requiring that employees use employer-provided vacation, sick, or other paid time off before using paid sick leave under the Sick Leave Act.
This portion of the paid leave law does not contain the same job protection coverage as the amended FMLA. Both sections of the law go into effect 15 days from their enactment yesterday. We continue to provide updated information as it becomes available.
This information is accurate as of March 19, 2020. It is subject to change based on any new legislation.
Rudman Winchell
207-947-4501