What Employers Need to Know About The Families First Act

Posted by Attorney David McClurg in COVID-19 / Comments

The Families First Coronavirus Response Act, also known as HR 6201, was enacted last week to provide free coronavirus screening, paid leave time, significantly expanded Family and Medical Leave Act (FMLA) rights, and greater unemployment benefits for individuals impacted by the coronavirus.

Emergency Paid-Leave

In general, the Emergency Paid-Leave provisions in the legislation apply to employers with fewer than 500 employees, but there may be some hardship exceptions available for small businesses and companies that employ health care workers. 100 percent of the “qualified sick leave wages” paid by employer are subject to reimbursement via subsequent quarterly tax credits. Although the Act provides direct aid to states to assist with the payment of unemployment claims, there is no exemption in the Emergency Paid Leave provisions of the Act for employers (generally non-profits) that are not covered by their state’s unemployment system. Such employers should provide any paid leave required under the Act and obtain reimbursement in the form of tax credits for those payments.

The Paid Leave provisions in the Act, which take effect April 2^nd and expire on Dec. 31, 2020, require employers to provide paid sick time of up to 80 hours for full-time employees who need time off for the following circumstances:

• Quarantine or isolation order by federal, state, or local authorities related to COVID-19 (Note: according to the U.S. Dept. of Health and Human Services: “Isolation is used to separate ill persons who have a communicable disease from those who are healthy. Quarantine is used to separate and restrict the movement of well persons who may have been exposed to a communicable disease to see if they become ill.” Under these definitions, employees who are unable to work because the businesses at which they are employed are deemed “non-essential” under the “Safer at Home” Order issued on March 24, 2020 by Governor Evers would not be entitled to paid leave. However, it could be argued that such “shelter in place” orders are intended to “isolate” workers from potential virus carriers in the workplace, and thus should trigger the Emergency Paid Leave requirements.)

• Employee has been advised to self-quarantine by a health care provider due to concerns related to COVID–19. (Note: this could include advice based solely on an employee’s high-risk status, with no exposure to an infected person or symptoms of infection.)

•     Employee is experiencing COVID-19 symptoms and is seeking medical diagnosis

•     Employee is caring for an individual who is quarantined

•     Due to school or child care closures, an employee is unable to work to care for children

The paid sick time benefits will be capped at $511 per day for the employee’s own care, and $200 per day to care for another individual. Employees should be paid at the higher of the following:

•     Regular rate of pay

•     Federal minimum wage

•     Local minimum wage

Part-time employees should be paid for the average number of hours they would normally work over a two-week period.

Expanded FMLA Rights – Including Paid Leave

Paid Family Leave must be provided, by all employers with less than 500 employees, to any employee who has worked for at least 30 days, who has been unable to work (or telecommute) for over 10 days due to child care concerns related to the coronavirus. If a minor child’s school or care facility is closed, the employee will be eligible for up to $200 per day, with a maximum of $10,000 through the end of the year.

Paid leave under this section must be at two thirds of the employee regular weekly rate. In the case of an employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked if such employee had not taken leave the employer shall use “a number equal to 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.”

The total amount of FMLA leave available to employees has not been expanded, so that any FMLA leave the employee takes for other reasons will be combined with any paid leave required under the expanded FMLA Leave provisions of the Act to determine the employee’s continued eligibility for leave – paid or unpaid.

Like the Emergency Sick Pay payments made by an employer, payments made under the Emergency FMLA Expansion Act will also be reimbursed via quarterly tax credits.