THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT BECOMES LAW

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (the “Families First Act”), which passed overwhelmingly on a bipartisan basis to respond to the growing health and economic crises caused by the new coronavirus.  The Families First Act contains both the Emergency Paid Sick Leave Act (the “Sick Leave Act”) and the Emergency Family and Medical Leave Expansion Act (the “FMLA Expansion Act”) and provides for paid sick leave, free testing for COVID-19 and expanded unemployment benefits. The provisions of these Acts expire on December 31, 2020.

The Sick Leave Act, effective no later than April 2, 2020, requires employers with fewer than 500 employees and governments to provide employees with paid sick leave, regardless of the employee’s date of hire.  The employee may take paid sick leave if the employee: (1) is subject to a federal, state or local quarantine or isolation order; (2) has been advised by a healthcare provider to self-quarantine; (3) is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; (4) is caring for an individual who is subject to (1) or (2) above; (5) is caring for a child whose school or day care has been closed, or the regular child care provider is unavailable due to COVID-19; or (6) is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services. 

Employers must provide this leave in addition to any sick leave policy in place and at the employee’s current rate of pay not to exceed $511 per day, and without requiring the employee to use any other accrued leave time.  If the employee is on leave to care for a family member with a COVID-19 diagnosis or for a child whose child care has been affected by the emergency, shall be paid at two-thirds of the employees rate of pay not to exceed $200 per day.  In both cases full-time employees are entitled to a total of two weeks (80 hours) of sick leave, with part-time employees being entitled to a total of the number of hours the employee would typically work in a two-week period.

An important exception is that healthcare providers and emergency responders are NOT required to provide sick leave to employees.  In addition, the Department of Labor has the authority to exempt small businesses with fewer than 50 employees, if imposing the paid sick leave requirement would impact the viability of the business as an ongoing concern.

The Sick Leave Act also contains an anti-retaliation provision, and it provides that an employer who does not comply with the Sick Leave Act will be treated as having committed a wage violation under the Fair Labor Standards Act. 

The FMLA Expansion Act, also effective no later than April 2, 2020, requires employers with fewer than 500 employees and governments to provide each employee who has been employed for at least thirty days with twelve weeks of mostly paid family and medical leave if the employee is unable to work or telecommute because the employee needs to care for a child who is under the age of 18, if the child’s school or place of care has been closed, or the child care provider is unavailable, due to a coronavirus emergency. 

The paid family and medical leave may be taken after the employee has taken the emergency paid sick leave described above.  The first 10 days for which an employee takes leave under the FMLA Expansion Act may consist of unpaid leave, but if the employee qualifies for the emergency paid sick leave, the employee may get paid for those 10 days under the Sick Leave Act.  An employee may choose to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.

Healthcare providers and emergency responders are NOT required to provide paid family leave to employees.  In addition, employers with fewer than 50 employees are exempt from the paid family and medical leave requirements if the provision of those benefits would jeopardize the business as an ongoing concern.  After the first 10 days of expanded family and medical leave, employees must receive a benefit from their employers equal to two-thirds of the employee's regular rate of pay times the number of hours the employee would otherwise be normally scheduled to work, with special rules for making this calculation for employees with a variable hourly schedule. Benefits are not to exceed $200 per day, or $10,000 in the aggregate, per employee.

In general, an employee must be restored to his or her same job on returning to work at the end of the emergency paid leave. For employers with fewer than 25 employees, there is relief provided if an employee taking the emergency paid leave holds a position when the leave began that does not exist when the leave ends as a result of economic conditions or other changes in operating conditions that affect employment and are caused by a public health emergency during the period of leave. The employer must make reasonable efforts to restore the employee to his or her position.

Group health plans and insurers offering health insurance coverage must cover and may not impose any cost sharing or any prior authorization or other medical management requirements on (1) FDA-approved products used to test for COVID-19 and the administration of such products; and (2) items and services furnished to an individual during visits to a health care provider, including telehealth services, urgent care, or an emergency room that result in COVID-19 testing.  These provisions are effective as of March 18, 2020 and will expire when the Secretary of Health and Human Services determines that the COVID-19 emergency has ended.

The attorneys at Whatley Kallas, LLP will monitor the respective agencies as they issue guidance regarding implementation of the Families First Act and will report on ongoing developments.