• Logan Adcock

Emergency Coronavirus Bill Expanding FMLA, Granting Paid Leave

President Donald Trump signed an emergency bill on March 25, 2020 to expand family and medical leave as well as guarantee paid sick leave for certain U.S. workers, including those employed by private entities or individuals who employ fewer than 500 employees.

The U.S. Senate passed the bill, titled the Families First Coronavirus Response Act, by a 90-8 vote earlier in the day. It was first passed in the U.S. House of Representatives on March 14, and a revised version passed on March 24, 2020.

The bill takes effect April 2, 2020, and it will sunset on Dec. 31, 2020.

Some highlights from the bill:

The bill has two separate provisions that impact private entities and individuals that employ fewer than 500 employees. First, it amends the FMLA to allow U.S. workers, including those employed by such entities, to take up to 12 weeks of job-protected leave if the employee is unable to work or telework due to a need to care for a child under 18 years of age because that child's school or place of care has closed or the child's child care provider is unavailable due to a public health emergency with respect to COVID-19.

The first 10 days of the emergency FMLA leave may consist of unpaid leave, but the employee must be paid for each subsequent day of leave. That payment would be calculated based on the number of hours the employee would normally be scheduled to work, and would not be less than two-thirds the employee's regular rate of pay. But the bill provides that this amount will not exceed $200 per day and $10,000 "in the aggregate."

Additionally, the bill exempts employers that employ fewer than 25 employees from the job-protected aspect of the emergency FMLA leave provided a specific set of conditions are met, including if a leave-taking employee's position is eliminated due to "economic conditions" or other changes that affect the employer's operations resulting from the public health emergency. The bill allows the Secretary of Labor to exempt employers with fewer than 50 employees from the emergency FMLA leave requirement, "when the imposition of such requirements would jeopardize the viability of the business as a going concern."

Second, the bill mandates that employers with fewer than 500 employees provide paid sick time to workers. This applies if the worker is sick with or has been quarantined due to COVID-19, is experiencing symptoms of the disease and seeking medical attention, or is caring for a child in the event of a school closure or unavailable child care provider, among other situations. Full-time employees are entitled to 80 hours of such leave, while part-time employees are entitled to time equal to the number of hours they work on average over a two-week period. As with existing FMLA leave, this paid leave can be taken incrementally and need not be taken all at once. The leave does not carry over from one year to the next.

An employer may not require, as a condition of providing the paid sick time, that an employee search for or find a replacement to cover for the hours during which the employee is using the paid sick time. The payment is calculated based on the employee's "required compensation" (i.e. the employee's regular rate of pay or the federal, state or local minimum wage, whichever is greater) and the number of hours the employee would otherwise be scheduled to work. Pay standards differ in certain situations, such as if an employee is using the time to care for a family member.

As with the expanded FMLA provision, the bill contains language allowing the Secretary of Labor to exempt small businesses with fewer than 50 employees from the paid sick leave requirement.

The bill stipulates that tax credits are available to employers providing the paid FMLA leave or pick sick leave.


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©2020 by Canterbury Gooch Surratt Shapiro Stein Gaswirth & Jones, P.C.