NEW LAW: Families first coronavirus response act—Paid leave for CORONAVIRUS related reasons
The Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave Expansion Act (EFML) were effective on April 1, 2020. Both laws are part of the Families First Coronavirus Response Act (FFCRA). The laws apply to certain private and public sector employees (Covered Employers) and provide employees with paid benefits under certain condition until the end of 2020. The stated goal of these new laws is to help combat and defeat coronavirus by reimbursing certain employers with tax credits for the costs of providing employees(Eligible Employees) with paid leave for specific coronavirus-related reasons and ensuring employees are not forced to choose between their paycheck and public health measures mandated to combat virus spread.
Who are Covered Employers under the new laws?
The recently passed laws apply to certain public employers and private employers. The laws cover private employers employing fewer than 500 employees. There is one employer exemption from coverage. However, regulatory language guards this exception against misuse. By regulation, small businesses with fewer than 50 employees may qualify for exemption from EFML (and not EPSL), if the leave requirement would jeopardize the viability of the business as a going concern.
Who are eligible employees
Full and part time employees are eligible for benefits under the new laws when work or telework is available. Eligible employees do not include employees who were furloughed, laid off, subject to reduced work schedules, or terminated, even if the cause for the Covered Employer’s action towards an otherwise Eligible Employee was somehow related to the coronavirus. Employees who are not working or facing reduced work schedules may qualify for benefits administer by the Texas Workforce Commission.
What are the new benefits for Eligible Employees
There are different benefits available for Eligible Employees under each new law. The paid sick leave (EPSL) law requires Covered Employers to provide Eligible Employees up to two weeks of paid sick leave at full pay, up to a specific cap when an employee is unable to work due to specifically defined coronavirus-related reasons. See coronavirus reasons 1, 2, and 3 in next question. Also, under the paid sick leave (EPSL) law, Covered Employers must provide Eligible Employees up to two weeks of paid sick leave at partial pay, up to a specific cap, when an employee is unable to work due to specifically defined coronavirus related reasons experienced by someone else including an Eligible Employee’s child. See coronavirus reasons 4, 5, and 6 in the next question. The emergency family and medical leave (EFML) law requires Covered Employers to provide Eligible Employees leave if the employee is unable to work due to a need for leave to care for his or her child if the child’s school or place of care is closed, or the child care provider is unavailable, for reasons related to the coronavirus. See coronavirus reason 5 in the next question. The leave is capped at twelve weeks and Eligible Employees are paid at two-thirds their regular rate for up to ten weeks of leave. The initial two weeks are unpaid under the new law. Eligible Employees may receive pay from other sources, such as EPSL, during the initial two weeks of unpaid leave under EFML. The emergency family and medical leave is also capped at a maximum $200 per day and $10,000 in total for the additional ten weeks.
What are the qualifying reasons for paid sick leave and expanded family and medical leave?
Under the paid sick leave law (EPSL), employees qualify for paid sick leave if the employee is unable to work (or unable to telework) for the following coronavirus related reasons:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to coronavirus.
- The employee has been advised by a healthcare provider to self-quarantine due to concerns related to coronavirus.
- The employee is experiencing symptoms of coronavirus and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to an order as described in subparagraph 1 above or has been advised as described in paragraph 2 above.
- The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to coronavirus 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.
A full time employee is eligible for 80 hours of paid sick leave, and a part-time employee is eligible for number of hours of leave that the employee works on average over a 2-week period, if the leave is for reasons 1, 2, 3, 4, or 6 above. Note: paid leave for reason 4 and 6 is at 2/3s the employee’s regular rate.
What is available to Covered Employers paying these new benefits to Eligible Employees?
Covered Employers paying benefits under the new laws qualify for reimbursement through refundable tax credits. These tax credits are administered by the Department of Treasury and are available for all qualifying sick leave wages and qualifying family and medical leave wages paid to employees under the new laws, up to daily and aggregate caps, and for allocable costs related to the maintenance of health care coverage under any group health plan while the employee is on leave covered by the new laws.
How much leave is available to Employees?
Employees are eligible for up to 80 hours of paid sick leave at the employee’s regular rate if they are unable to work for coronavirus related reasons. Employees are eligible for up to 80 hours of paid sick leave at 2/3’s the employee’s regular rate if they are unable to work because of the need to care for someone else or a child for coronavirus related reasons. (This paid sick leave provision works with leave for expanded family and medical leave by providing opportunity for pay during the first 2 weeks of expanded family and medical leave.) Employees are eligible for up to an additional 10 weeks of paid expanded family and medical leave at 2/3’s the employee’s regular rate, if the employee has been employed for at least 30 days, and is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed for reasons related to coronavirus.
A full time employee is eligible for up to 12 weeks of leave (2 weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave at 40-hour a week, and part-time employee is eligible for leave for the number of hours that the employee normally is scheduled to work over that period, if the leave is for reason 5. Note: paid leave for reason 5 is 2/3s the employee’s regular rate.
Employers must post notice of the new law. (Under the current circumstances, sending the posting to each employee by email is a good idea.)
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If you need more information or have questions about this new, limited law, contact Glavy Law.
