Law Office of Shane McClelland Law Office of Shane McClelland

Families First Coronavirus Response Act

Families First Coronavirus Response Act

Families First Coronavirus Response Act

Last week, President Trump signed the Families First Coronavirus Response Act into law. This new law makes sweeping, but temporary, changes to the Family Medical Leave Act to address the COVID-19 pandemic.

At the Law Office of Shane McClelland, we are here to help you understand these new laws and how they impact your current employment situation. And, most importantly, how to hold employers accountable to these new laws.

The following is not an exhaustive analysis or description of the new laws. Instead, it is an attempt to highlight the provisions that we believe will have the greatest impact on the vast majority of employees and employers in our country.

Part of these new laws is the Emergency Paid Sick Leave Act (“PSL Act”), which applies to private employers with less than 500 employees and all government employers. But the Secretary of Labor has the authority to issue regulations to:

  • Exempt businesses with fewer than 50 employees from the paid sick leave requirements under the Emergency PSL Act if providing leave to certain employees would put their businesses in jeopardy of failing.

How much leave can employees take?

Certain full-time employees may take 80 hours of paid leave (and potentially more if the leave is for childcare that qualifies for emergency paid family leave). Part-time employees have slightly different rights in that they are entitled to the average number of hours the employee works during a two-week period. Covered employees are entitled to paid leave for specified purposes related to COVID-19. Employers must provide leave immediately, regardless of the employee’s length of employment.

Employers are prohibited from requiring an employee seeking leave to:

  • Use other paid or unpaid leave before allowing paid leave available under this new law.
  • Find a replacement to cover the employee’s hours or shift before allowing paid leave.

After an employee using his or her first leave under the new law, employers may require the employee to follow reasonable notice procedures in order to continue receiving paid sick time. Unused leave cannot be carried over to the following year.

Paying Employees on Leave—Two Scenarios:

Specific provisions apply to when and how much employers must pay their employees on sick leave because of COVID-19.

Situation One:

Employers must pay their employees based on the employee’s regular rate of pay, depending on the reason for leave. That leave shall be paid at 100% of the employee’s regular rate, but it is capped at $511 per day and $5,110 in total for an employee who is:

  • Under a government-issued quarantine order or the employer is quarantined based upon the advice of health care provider, or
  • The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis related to COVID-19.

Situation Two:

Employers must pay their employers utilizing this paid leave two-thirds of the employee’s regular rate of pay, but it is capped at $200 per day and $2,000 in total for leave needed:

  • To care for another individual under quarantine or a child under 18 whose school or childcare provider is closed or unavailable because of COVID-19; or
  • If the employee is experiencing a substantially similar condition.

Notice, Remedies, and Other Provisions

Effective March 25, 2020, employers will have access to notices related to the new laws that must be posted.

Fundamentally, the law protects employees from retaliation who use emergency paid sick leave or complain about violations of the Emergency PSL Act.

If an employer fails to comply with the Emergency PSL Act, then it constitutes a failure to pay minimum wages in violation of the Fair Labor Standards Act. But, the Department of Labor (the Governmental Department that enforces the FLSA) has indicated that it will not enforce these provisions for 30 days if the employer acted reasonably and in good faith. Presumably, the burden to prove that the employer acted in good faith will rest with the employer. It’s unclear how high that burden will be.