The Families First Coronavirus Response Act (the “Act”), passed in the House and awaiting action in the Senate, would require employers with fewer than 500 employees to provide eligible employees with paid sick leave and emergency paid leave (essentially providing a paid FMLA benefit) for certain specified COVID-19 reasons where:
- The employee has a current diagnosis of COVID-19;
- The employee is quarantined (including self-imposed quarantine), at the instruction of a health care provider, employer, or government official, to prevent the spread of COVID-19;
- The employee is caring for a family member who has COVID-19 or who is under a quarantine related to COVID-19; or
- The employee is caring for a child or other individual who is unable to care for themself due to the COVID-19-related closing of their school, child care facility, or other care program.
Paid Sick Leave
The Act requires employers to provide all employees with 14 days of paid sick leave for the COVID-19-related reasons listed above. Full-time employees are entitled to 80 hours of paid sick leave and part-time employees are entitled to paid sick leave in an amount equal to the number of hours that the employee works, on average, over a 2-week period. Employees are entitled to paid sick leave (i) at the employee’s regular rate for leave taken as a result of their own need to self-isolate or seek diagnosis or care or (ii) at two-thirds of the employee’s regular rate of pay for leave taken to care for a family member for the same reasons or to care for a child whose school has closed, or whose child care provider is unavailable, due to COVID-19.
The paid sick leave benefit under the Act would be in addition to whatever sick pay an employer already provides. The Act contains a provision stating that small businesses (fewer than 50 employees) would be reimbursed by the government for the 14-day sick pay benefit.
Emergency Family and Medical Leave Act (EFMLA)
The Act also requires employers to provide employees who have been working for at least 30 calendar days with up to 12 weeks of job-protected FMLA leave for the COVID-19-related reasons listed above. This would apply even to employers who might not otherwise be subject to the requirements of the FMLA because they have fewer than 50 employees.
Under this emergency paid leave section of the Act, the first 14 days of COVID-19 leave are unpaid (although the employee may be entitled to paid sick leave under the paid sick leave provision of the Act noted above), and employees are entitled to paid leave in an amount equal to two-thirds of the employee’s regular rate of pay for the remaining 10 weeks. (Days when an eligible employee receives pay from their employer (whether regular wages, PTO, or sick pay) or unemployment compensation do not count as qualifying “leave days” for the purposes of the extended emergency paid leave benefit).
The Act indicates that the extended emergency paid leave benefit would be funded through the Social Security Administration and that the eligible employee would make an application for payment of the benefit directly.
It is important to note that this legislation is evolving. In fact, the House has already unveiled changes to the proposed legislation that would narrow the scope of what constitutes a “qualifying need” under the EFMLA. Specifically, under the new iteration, “qualifying need” is limited to circumstances in which an employee is unable to work (or telecommute) because of a need to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency. Additionally, the period of unpaid leave has been reduced from 14 days to 10 days in the revised bill.
The Senate is expected to propose additional changes and vote in the near term.