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Eric H. De Wames

Eric H. De Wames
Mr. De Wames, Managing Partner, is responsible for the firm’s employment law practice.

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The Impact of The Families First Coronavirus Response Act on Employers with Fewer than 500 Employees

Posted by Eric H. De Wames on Mar 23, 2020 2:00:00 PM

On March 14, 2020, the House passed the Families First Coronavirus Response Act (H.R. 6201). On March 18, 2020, the Senate passed the bill which was significantly revised from its original form. President Trump signed it into law the same day. The effective dates of these provisions are from April 1, 2020 through December 31, 2020.

Emergency Family and Medical Leave Expansion Act (EFMLEA)

This law amends and expands the Family and Medical Leave Act (FMLA) to require all private employers with fewer than 500 workers even employers who were not otherwise covered under the original FMLA to provide leave to workers who need to care for children without schooling or day care because of COVID-19. Additionally, the universe of eligible employees is expanded to those who were employed with the employer for at least 30 days prior to the start of the leave (compared to one year for the typical FMLA claim).

The first 10 days of the leave is unpaid (unless the below Emergency Paid Sick Leave applies), and employees can (but are not required to) apply accrued paid time off benefits to that period. After this 10-day period, employers must provide paid family leave up to $200/day or $10,000 in the aggregate.

Emergency FMLA leave taken is generally job-protected, meaning the employer must restore employees to their prior positions (or an equivalent) upon the expiration of their need for leave. The bill includes an exception to this requirement for employers with fewer than 25 employees, if the employee's position no longer exists following leave due to operational changes occasioned by a public health emergency (e.g., a dramatic downturn in business caused by the COVID-19 pandemic), subject to certain conditions.

Emergency Paid Sick Leave Act (EPLSA)
This component of the law requires all employers with fewer than 500 employees to pay emergency sick leave to employees under any of the following categories:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for an individual who is subject to a Federal, State or Local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is caring for their own child if the school or place of care of the child has been closed, or the child care provider of such child is unavailable, due to COVID-19 precautions.
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.


Employees who are themselves subject to governmental quarantine or isolation orders or medical care for COVID-19 symptoms or diagnosis max out at $511 per day or $5,110 in the aggregate. Employees caring for family members subject to government or medical provider quarantine or isolation orders or children whose schools or day care centers closed due to COVID-19 precautions are paid out at two thirds their regular rate and max out at $200 per day or $2,000 in the aggregate. The emergency paid sick leave benefit caps at 80 hours for full-time workers or the average number of hours across a two-week period for part-time employees.

The bill includes a prohibition on retaliating against any employee who takes leave in accordance with the new law. The bill further provides that the failure to pay required sick leave will be treated as a failure to pay minimum wages in violation of the Fair Labor Standards Act.

Employer Tax Credit
Although these benefits are paid initially by the employer, tax credits are equal to 100% of the emergency paid family medical leave or emergency paid sick leave paid by employers per quarter. If the tax credits exceed the employer's actual tax liability, the employer will receive a refund for the difference.

Small Business Exception
Employers with fewer than 50 workers can apply for an exemption from providing paid family and medical leave and paid sick leave if it "would jeopardize the viability of the business."

Action Items
In order to comply with this new law, Employers will need to do the following:

  • Starting April 1, 2020, satisfy the posting requirements for FFCRA, which may include circulating to all employees by email and/or mail for those not in-office due to any of the above conditions.
  • Accurately track leaves of absence (e.g., FFCRA, FMLA, CFRA, PTO, etc.) identifying which leaves are being applied and for what duration. Notify and properly designate these leaves at their onset.
  • Ensure wage statements accurately reflect and itemize wages paid by these benefits.
  • Take actions to confirm that managers and supervisors understand and follow the anti-retaliation components of these laws.
  • Reinstate employees after leave as required by the law.

     

Topics: Red Alerts, COVID-19