Client Alert: Congress Enacts New FMLA and Paid Sick Leave Requirements in Response to COVID-19

Date: March 18, 2020
On March 18th, the U.S. Senate approved the Families First Coronavirus Response Act, which was recently passed by the House of Representatives.  The legislation now awaits signature by the President.  Among a host of measures relating to health services and other forms of aid, the Act contains two new laws creating employee leave rights that will apply to a broad spectrum of employers.  Under the terms of the new statute, these employee leave provisions will take effect within 15 days of the law being enacted.  Below is brief overview of the key provisions of those two components of the Act.

Amendments to the Family and Medical Leave Act of 1993

The Act includes a set of temporary revisions to the FMLA, which include new leave rights and an expansion of the FMLA’s coverage provisions as to both employers and employees.  

The crux of the change is the creation of a new qualifying reason for the use of FMLA leave, which allows for FMLA time to be used when an employee is unable to work (or telework) due to a need to care for a son or daughter under the age of 18 whose school has been closed, or whose child care provider is unavailable, as a result of public health measures tied to the coronavirus.  While the FMLA generally only applies to employers with at least 50 employees, the new leave provision applies to all employers with fewer than 500 employees, meaning that small employers who would otherwise not be covered by the statute will need to comply with the new requirements.  Additionally, while the FMLA contains eligibility provisions that generally require an employee to be employed for a year prior to having a right to use FMLA leave, the new leave entitlement applies to all employees who have been employed for at least 30 days.  

In another significant deviation from the general requirements imposed by the FMLA, the statute provides for a portion of this new leave time to be in the form of paid leave.  Specifically, the first ten days of the leave may be provided on an unpaid basis, although employees are free to use any available paid time off that is otherwise available to them.  The remainder of the available leave time is to be in the form of paid leave, subject to payment caps contained in the statute.

Emergency Paid Sick Leave Act

In addition to amending the FMLA, the new statute contains a separate set of provisions that create a paid sick leave program, which will be in effect only until the end of this year.  Under this statute, employees are to be provided with two weeks of paid leave, which is subject to being pro-rated for employees who normally work a part-time schedule.  

This paid leave is available to be used when an employee is unable to work (or telework) as a result of:
  • Being quarantined or isolated in connection with COVID-19;
  • Experiencing COVID-19 symptoms;
  • Caring for an individual who is ill or quarantined; or
  • Caring for a child whose school or child care provider is closed.

The amount that an employer is required to pay in connection with this leave time is dependent on the reason why the employee has taken the leave, and is likewise subject to a set of caps contained in the statute.  

Tax Credits

The Families First Coronavirus Response Act contains a series of provisions that provide for tax credits to be granted to employers in amounts that correspond to the payments made to employees under the paid leave provisions contained in the Act.   

Closing Thoughts

The information provided above represents only a summary of the key provisions contained in this legislation.  The new statute includes a number of detailed provisions impacting how these new requirements will apply in particular circumstances, and is being implemented at a pace far quicker than would normally apply to such significant employment legislation.  Employers should therefore seek legal counsel to assist in their efforts to comply with these new obligations.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.