• Families First Coronavirus Response Act

  • From our partner: Employer Flexible

    On March 18, the Senate passed the Families First Coronavirus Response Act, and it was quickly signed into law by President Trump. The law’s new provisions on leave will go into effect on April 1, 2020 not April 2 as previously announced. Click here for Department of Labor Q&A

    The Families First Coronavirus Response Act is an economic stimulus plan aimed at addressing the impact of the COVID-19 outbreak on Americans and introducing paid sick leave and an expanded family and medical leave act to the nation’s employers. The bill covers all companies with up to 500 employees.

    We've highlighted key takeaways from the law's Emergency Family and Medical Leave Expansion Act. Note that the below is for informational purposes only and does not constitute legal advice. If you have additional questions, please contact your Employer Flexible HR Consultant or an employment lawyer.

    Emergency Family and Medical Leave Expansion

    The new law significantly amends and expands FMLA on a temporary basis, defines qualifying needs for emergency leave, redefines the unpaid period of Emergency FMLA, provides guidance on calculating pay for non-full-time employees and further defines which employers are subject to job restoration requirements.

    Expanded Coverage and Eligibility – Under this new law, the current employee threshold for FMLA coverage is changing from only covering employers with 50 or more employees to instead covering those employers with fewer than 500 employees. It also lowers the eligibility requirement such that any employee who has worked for the employer for at least 30 days prior to the designated leave may be eligible to receive paid family and medical leave.

    What this means: Many employers not previously subject to the FMLA may be required to provide job-protected leave to employees for a COVID-19 coronavirus-designated reason.

    Reasons for Emergency Leave – The new law states that an employee who has been with the company for at least 30 days (before the first day of leave) may take up to 12 weeks of job-protected leave to allow an employee, who is unable to work or telework, to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency.

    What this means: This is now the only qualifying need for Emergency FMLA and a significant change from the prior version of the bill passed by the House over the weekend, which contained several other COVID-19-related reasons to provide Emergency FMLA.

    Paid Leave – The first 10 days of Emergency FMLA may be unpaid. During this 10-day period, an employee may elect to substitute any accrued paid leave (like vacation or sick leave) to cover some or all of the 10-day unpaid period. After the 10-day period, the employer generally must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. The Act limits pay entitlement to $200 per day and $10,000 in the aggregate per employee.

    What this means: Employers (with some exceptions) are required to pay full-time employees at two-thirds their regular rate following a 10-day unpaid leave period.

    Calculating Pay for Non-Full Time Employees – Employees who work a part-time or irregular schedule are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation at hiring of the average number of hours the employee would normally be scheduled to work.

    What this means: Employers should expect to adhere to these guidelines in order to determine what to pay employees who work part-time or an irregular schedule. 

    Job Restoration – Employers with 25 or more employees will have the same obligation as under traditional FMLA to return any employee who has taken Emergency FMLA to the same or equivalent position upon the return to work. However, employers with fewer than 25 employees are generally excluded from this requirement if the employee’s position no longer exists following the Emergency FMLA leave due to an economic downtown or other circumstances caused by a public health emergency during the period of Emergency FMLA. This exclusion is subject to the employer making reasonable attempts to return the employee to an equivalent position and requires an employer to make efforts to return the employee to work for up to a year following the employee’s leave.

    What this means: Many employers (with some exceptions for businesses with 25 or fewer employees) will be obligated to return an employee who takes Emergency FMLA to the same or equivalent position upon their return.

    This program will become effective April 2 and remain in effect until December 31, 2020.