Mar 2020

Federal Emergency Paid Sick Leave and FMLA Expansion Enacted in Response to COVID-19

Federal Emergency Paid Sick Leave Act (becomes effective April 2, 2020)

On March 18, President Trump signed into law the Families First Coronavirus Response Act (FFCRA).

The FFCRA enacts the Emergency Paid Sick Leave Act (SLA), which provides employees with paid sick leave. Features include:

  • All employers with fewer than 500 employees are covered.
  • Full-time employees are entitled to 80 hours of paid sick leave if the employee is: (i) an employee subject to a coronavirus quarantine or isolation order; (ii) an employee who has been advised by a health care provider to self-quarantine due to coronavirus concerns; (iii) an employee who is experiencing symptoms of coronavirus and is seeking a medical diagnosis; (iv) an employee caring for an individual described in (i) or (ii) above; (v) an employee caring for a child whose school or place of care is closed, or the child care provider of the child is unavailable, due to coronavirus precautions; or (vi) an employee who is experiencing any other substantially similar condition specified by HHS in consultation with the Treasury and Labor Departments.
  • Part-time employees are entitled to paid sick leave based on their average number of hours worked over a two-week period.
  • Only employees who are unable to work from home are covered.
  • We believe that the closure of non-essential businesses pursuant to the recent executive orders in Pennsylvania and New Jersey will trigger the benefits to employees under the SLA once it goes into effect on April 2.
  • The SLA caps employer payments to any affected employee from $2,000 to $5,110 depending on the reason for the employee’s leave.
  • Employers will be eligible to receive certain tax credits and related recoupments based on their payments under the SLA and the Federal Emergency FMLA Expansion Act (discussed further below).

Federal Emergency FMLA Expansion Act (becomes effective April 2)

The FFCRA also enacts the Emergency FMLA Expansion Act (FMLA Expansion Act), which provides employees with paid family medical leave. Features include:

  • Covers employees of companies with fewer than 500 employees.
  • Applicable to all eligible employees who are unable to telework and who need to care for a child due to school closures.
  • The family medical leave provided for is a 12 week entitlement. The first 10 days are unpaid. The remainder of the period is paid at 2/3 the employee’s regular rate of pay for the number of hours the employee would otherwise be scheduled to work during such period.
  • The maximum benefit to an eligible employee is $200 per day, up to a maximum total amount of $10,000.
  • Provides a 100% tax credit to the employer against FICA taxes for wages paid by an employer which are required to be paid under the SLA and the FMLA Expansion Act.
  • In addition, certain qualified health plan expenses of the employer may also qualify for the credit.

The interplay between the Federal and applicable State emergency leave laws is complex, and new issues continue to develop in this rapidly-changing area. Earp Cohn will remain at the forefront of all developments and will continue to provide real-time updates. In the meantime, companies and individuals needing guidance should reach out to our attorneys for assistance.