Coronavirus Legislation – New Rules for FMLA and Paid Sick Leave

The Families First Coronavirus Response Act was signed by the President on March 18 and will take effect no later than April 2, 2020.

For a detailed memorandum summarizing the provisions of the Act, please click here.

The Act requires most employers with fewer than 500 employees, along with most government employers (regardless of the number of employees), to provide employees with up to two weeks of paid sick time if an employee is “unable to work (or telework)” because the employee:

1. Is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
4. Is caring for an individual who is subject to an order described in category (A) above or has been advised as described in category (B) above;
5. Is caring for a son or daughter of the employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; and/or
6. Is experiencing any other substantially similar condition specified by the Department of Health and Human Services in consultation with the Departments of the Treasury and Labor.

There are limited exceptions for certain health care providers and emergency responders.

The Act also amends the Family & Medical Leave Act (FMLA) to require most employers with less than 500 employees, as well as all government employers (regardless of the number of employees) and all private and public elementary and secondary schools (regardless of the number of employees), to provide FMLA leave to any employee who has been employed for at least 30 calendar days if the employee is “unable to work (or telework)” because the employee’s son or daughter under age 18 is unable to go to school or daycare as a result of a COVID-19 “public health emergency.” These requirements apply even if an employer is not normally subject to FMLA.

If an employee is entitled to FMLA leave on this basis, during the first 10 days of such special FMLA leave, the employee may choose to use either accrued paid leave provided by the employer or the paid sick leave required by the Act. (The employer cannot force the employee to use paid leave, though.) After the first 10 days, the employee’s FMLA leave must be paid.

Employers (other than certain government employers) will be able to claim a refundable credit against their quarterly payroll taxes for the amount they are required to pay their employees for both the “paid sick time” and the paid FMLA leave required by the Act, along with the employer’s cost of group health plan benefits during the paid leave. However, there will be no refundable tax credit for amounts paid to an employee simply using standard, accrued paid leave provided by the employer.

If you have any questions regarding the requirements of the Families First Coronavirus Response Act as those requirements apply to you, please do not hesitate to contact Jim Spencer, Eric Barth, Brad Schlozman, Eric Namee, Steven Smith, or Ruhe Rutter at (316) 267-2000.

For a detailed memorandum summarizing the provisions of the Act, please click here.