Member Article

Along with funding for health services and testing and expanded access to food benefits like SNAP and WIC, the sweeping Families First Coronavirus Response Actincludes paid family and sick leave entitlements for employees who are out of work due to COVID-19 related reasons.

The paid leave portions of the Act are made up of two different laws: the Emergency Family and Medical Leave Expansion Act of 2020, which grants up to 12 weeks of leave to care for a child (referred to as “emergency family and medical leave”), and the Emergency Paid Sick Leave Act, which grants up to 80 hours of leave for COVID-19 related reasons (referred to as “emergency paid sick leave”). The highlights of these paid leave portions of the Act can be foundhere. Below we’ve provided answers to some of the frequently asked questions regarding the new Act:

Question: When does the Act go into effect?

Answer: April 2, 2020 (15 days after enactment, which occurred on March 18, 2020).

Question: Which employers are covered by the Act?

Answer: Both the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act apply to all private employers withfewer than500 employees and all public employers with more than 1 employee. Employers of healthcare providers and/or emergency responders may elect to exclude such employees.

Question: How is the number of employees calculated?

Answer: The existing rules for calculating employees under the Family and Medical Leave Act (“FMLA”) apply. Under FMLA regulations, the employee threshold number includes all employees who have appeared on an employer’s payroll, regardless of whether the employees actually earned any wages. Therefore, an employer is covered by the Act if it had fewer than 500 employees on the payroll (regardless of hours worked) for 20 or more calendar weeks in either the current or preceding year.

Question: What if an employer has 500 or more employees?

Answer: The Act does not apply to these employers. These employers should follow their existing sick leave policies. Some large employers, including Walmart and Darden Restaurants, have announced they will voluntarily provide paid sick leave.

Question: Which employees are covered by the Act?

Answer:The Emergency Paid Sick Leave Act coversallemployees of a covered employer (with the caveat that healthcare providers and emergency responders may be excluded). The Emergency Family and Medical Leave Act covers all employees who have been employed for at least 30 calendar days by the employer (again, with the caveat that that healthcare providers and emergency responders may be excluded).

Question: How much paid leave must employees be granted?

Answer: It depends. Eligible employees who workfull-timemay use up to 80 hours of emergency paid sick leave for qualifying reasonsand10 additional weeks ofemergency family and medical leave if they have a child whose school or childcare facility is closed due to COVID-19.

The amount of paid sick leave an employer must grant to eligible employees who workpart-timedepends on how many hours the employee works, on average, over a 2-week period. For example, if the employee typically works 15 hours per week, then the employee can receive up to 30 hours of emergency paid sick leave for qualifying reasons. All eligible part-time employees must also be granted 10 additional weeks of emergency family and medical leave if they have a child whose school or childcare facility is closed due to COVID-19.

Question: Under what circumstances may an employee take emergency paid sick leave or emergency family and medical leave?

Answer: There are at least two important things to note here. First, the “qualifying reasons” for which an employee may use emergency paid sick leave vary substantially from the qualifying reason for which an employee may use emergency family and medical leave. Second, these portions of the Act changed significantly as it progressed through Congress, so it is important to verify that any resources you’re relying upon are up to date and talking about the lawas enacted.

Under the final version of the Act signed into law, employees may use up to 2 weeks of emergency paid sick leave when they cannot work (or telework) because:

1. The employee is subject to a Federal, State, or local quarantine/isolation order;
   
   
2. The employee has been advised by a health care provider to self-quarantine due to COVID-19-related concerns;
   
   
3. The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;
   
   
4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2);
   
   
5. The employee is caring for a son or daughter because their school or place of care has been closed, or their child care provider is unavailable, due to COVID-19 precautions; or
   
   
6. For other substantially similar conditions that may be later specified by the Secretary of Health and Human Services.
   
   

• Employees may only use the 12 weeks of emergency family and medical leave when they cannot work(or telework)because they need to care for their son or daughter under 18 years of age whose school or place of care has been closed, or whose child care provider is unavailable, due to COVID-19.
  
  

Question: How much is an employee paid when using the 2-week emergency paid sick leave?

Answer: If an employee uses emergency paid sick leave for reasons 1, 2, or 3 above, then the employer must pay the employee their full earnings, with a cap of $511 per day ($5,110 total). If the employee uses emergency paid sick leave for reasons 4, 5, or 6, then the employee must be paid in an amount not less than two-thirds of the employee’s earnings, with a cap of $200 per day ($2,000 total).

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