Families First Coronavirus Response Act
Tuesday, April 21, 2020 at 10:23AM 
The Families First Coronavirus Response Act (Act) was enacted by Congress and signed by the President on March 18, 2020. An initial guidance was published by the U.S. Department of Labor one week later on March 25, 2020. The Act goes into effect April 1, 2020. Employers have little time to adjust to this new law is short.
HR 6201 Families First Coronavirus Response Act
The Act, among other provisions, provides for two new paid leave benefits for employees.
The Emergency Family and Medical Leave Expansion Act (EFMLEA - snazzy acronym I know) provides eligible employees up to 12 weeks of paid EFMLEA family leave for designated purposes (discussed below). The Emergency Paid Sick Leave Act (EPSLA) provides eligible employees up to 80 hours of paid sick leave for designated purposes (also discussed below).
New Employment Poster
As with any new employment law these days, the Act comes with a new poster that you are required to display.
This law is currently due to expire on December 31, 2020. Don’t be surprised if there is a movement in the U.S. House to extend and expand employer requirements under the Act.
Small Business Exemption
The Secretary of Labor can exempt small businesses with fewer than 50 employees when compliance with the Act would jeopardize the viability of the business. Rules implementing this exemption are expected next week. Hopefully small employers will not be required to make individual applications. It is also hoped that the exemption will be as broad and as simple as possible.
Large Employers
The Families First Coronavirus Response Act does not apply to organizations with 500 employees or more. If you have more than 500 employees, are excluded from the Act. Should your employee count be reduced to less than 500 employees, you will need to consider how the Act affects your organization.
Your employees may still qualify for unpaid federal Family and Medical Leave Act (FMLA) leave and/or unpaid Oregon Family Leave Act (OFLA) leave (or comparable state or local leave in other states). The Oregon State Labor Commissioner announced a new emergency rule on March 18, 2020, amending OFLA’s sick child leave rule to include leave to care for a child when schools have been closed due to a public health emergency. Covered employer and qualified employee requirements under FMLA and OFLA still apply.
Emergency Paid Family Leave – EFMLEA
EFMLEA applies to all employers with fewer than 500 employees. The regular FMLA only applies to employers with 50 or more employees within a 75-mile radius. That is not the case with EFMLEA. If you have even a single employee (but less than 500 employees), EFMLEA Emergency Paid Family Leave applies.
The employee eligibility requirements are also different. Under FMLA, employees must have worked for 12 months and 1,250 hours in the preceding 12 months prior to taking FMLA leave. Under the EFMLEA, the only requirement is that employees must have worked for the employer for at least 30 calendar days.
Even if an employee has worked less than 30 calendar days and is not eligible for EFMLEA Emergency Paid Family Leave, the employee may still be eligible for EPSLA Emergency Paid Sick Leave.
EFMLEA Reason
Under EFMLEA, Emergency Paid Family Leaveis available for eligible employees if the employee is unable to work (or unable to work remotely) because they must care for a child (under 18 years of age) whose school or care provider is closed or unavailable due to a Coronavirus emergency as declared by a federal, state or local authority. No other paid family leave is provided.
Paid Medical Leave Requirements
If an employee qualifies for EFMLEA Emergency Paid Family Leaveto care for a child when the child’s school or childcare is not available due to the Coronavirus, the provisions set out below apply.
First 10 Days Unpaid. The first 10 days of qualifying EFMLEA leave is unpaid. After 10 days, the remainder of the leave is with pay as discussed under the EFMLEA Payments section below.
Employees may elect to use existing vacation time, PTO leave, paid sick leave or Oregon Paid Sick Time(or comparable state or local law in other states) at the same time as the 10-day unpaid EFMLEA leave period. The choice is up to them. Employers cannot require employees to do so.
If the employee also qualifies for EPSLA Emergency Paid Sick Leave (discussed below), the employee may use the paid EPSLA sick leave at the same time as the 10-day unpaid EFMLEA family leave.
Emergency Family Leave Payments. After the 10th day, the employee is to be paid two-thirds of the employee’s regular rate under the Fair Standards Actfor the number of hours the employee normally works. When the number of hours cannot be predicted, the average number of hours worked per week during the six months before the employee requested EFMLEA leave is used to determine a weekly average.
EFMLEA Emergency Family Leave payments shall not exceed $200 per day and $10,000 total during the EFMLEA leave. After the $10,000 maximum is reached, any remaining EFMLEA leave is unpaid.
Required Documentation. The Act does not specify the documentation an employee must provide to establish that the employee needs Emergency Paid Family Leave under EFMLEA. However, you should require employees to certify in writing that the leave meets the Act’s requirements. We are preparing a written request form you can have employees sign to document compliance and prevent abuse. Reply to this email for more information.
Emergency Family Leave Payroll Tax Credit. Employers are granted a refundable tax credit for 100% of the qualified EFMLEA Emergency Family Leave wages the employer pays in each calendar quarter and for qualified health plan expenses allocable to the wages paid under the EFMLEA.
This credit can be used to offset the employer portion of Social Security taxes (6.2%) and the employer portion of the hospital insurance charge (1.45%). Employers will receive a refund for credits exceeding the employer’s liability for Social Security taxes.
Return to Work. Employers are required to reinstate employees at the end of their EFMLEA Emergency Paid Family Leave.
Employers with fewer than 25 employees are not required to reinstate an employee when the employee’s position no longer exists because of economic or operating conditions caused by the Coronavirus. The employer is only required to make reasonable efforts for one year to restore the employee to an equivalent position with equivalent pay, benefits and terms and conditions of employment. This includes the duty to contact the employee when an equivalent position becomes available during the one-year period.
Emergency Paid Sick Leave – ESPLA
The requirements for an employee requesting ESPLA Emergency Paid Sick Leave are different than that for EFMLEA Emergency Paid Family Leave.
Covered Employees & Employee Eligibility
EPSLA Emergency Paid Sick Leave applies to all employers with fewer than 500 employees. If you have even a single employee (but less than 500 employees), EPSLA applies.
There are none of the eligibility requirements based on length of employment or other factors found in every other employment law. All full-time and part-time employees are immediately eligible from day one. There is no minimum period of employment.
Qualifying Emergency Paid Sick Leave
An employee qualifies for Emergency Paid Sick Leave when the employee cannot work or cannot work remotely because of one of the reasons set out below.
- Employee is subject to a federal, state or local quarantine or isolation order.
- Employee has been advised by a health care provider to self-quarantine.
- Employee is experiencing symptoms of Coronavirus and is seeking a medical diagnosis.
- Employee is caring for a person subject to a federal, state or local quarantine or isolation order.
- Employee is caring for a person who has been advised by a healthcare provider to self-quarantine.
- Employee is caring for a child of the employee whose school or daycare is closed.
Please be aware, however, that the statute also allows Emergency Paid Sick Leave for any other substantially similar condition specified by the Secretary of Health and Human Services, the Secretary of Treasury and/or the Secretary of Labor. At the time of drafting this article, there are no rules or orders by any of these Cabinet officials.
Even if an employee does not qualify for Emergency Paid Sick Leave under EPSLA, the employee may still qualify for unpaid federal Family and Medical Leave Act (FMLA) leave and/or unpaid Oregon Family Leave Act (OFLA) leave (or comparable state or local leave in other states). The Oregon State Labor Commissioner announced a new emergency rule on March 18, 2020, amending OFLA’s sick child leave rule to include leave to care for a child when schools have been closed due to a public health emergency. Covered employer and qualified employee requirements under FMLA and OFLA still apply.
ESPLA Emergency Paid Sick Leave Requirements
If an employee qualifies for ESPLA Emergency Paid Sick Leave for one of the 6 listed reasons, the following provisions apply.
EFMLEA Family Leave & EPSLA Sick Leave. If an employee qualifies for both EFMLEA Emergency Paid Family Leave and EPSLA Emergency Paid Sick Leave, the employee may use the paid family leave and the paid sick leave at the same time so that they receive payment for the first 10-days of EFMLEA family leave (normally unpaid).
Other Paid Time Off. EPSLA Emergency Paid Sick Leave is in addition to whatever leave was available to employees before the passage of the Act (vacation time, paid time off, paid sick leave, Oregon Paid Sick Time (or comparable state or local paid sick leave in other states), etc.). Employers cannot change their leave policies after passage of the Act to provide less leave than what has been previously promised.
Employers cannot require employees to take leave under existing policies first. Employees have the option to take EPSLA Emergency Paid Sick Leave before any other leave provided by the employer if the employee so desires.
Hours of Paid Leave. Full-time employees are entitled to 80 hours of EPSLA Emergency Paid Sick Leave. Part-time employees are entitled to be paid for the number of hours worked over the prior two-week period.
Emergency Paid Sick Leave Payments. The amount paid is determined by the reason for the EPSLA Emergency Paid Sick Leave. If the employee is subject to a quarantine or isolation order, advised to self-quarantine or experiencing symptoms of Coronavirus (reasons 1 through 3 above), then the employee is to be paid the employee’s regular rate of pay, subject to a limit of $511 per day and $5,110 total.
If the employee is taking EPSLA Emergency Paid Sick Leave to care for a person subject to a quarantine or isolation order or has been advised to self-quarantine, to care for a child whose school or daycare is closed or for a substantially similar condition specified by executive order (reasons 4 through 6 above), then the employee is to be paid two-thirds of the employee’s regular rate of pay, subject to a limit of $200 per day and $2,000 total.
Required Documentation. The Act does not specify the documentation an employee must provide to establish that the employee needs Emergency Paid Family Leave under EPSLA. However, you should require employees to certify in writing that the leave meets the Act’s requirements. We are preparing a written request form you can have employees sign to document compliance and prevent abuse. Reply to this email for more information.
Notice Procedures. After the first day of Emergency Paid Sick Leave, you can require employees to follow reasonable call-in procedures to continue receiving paid sick leave.
Emergency Paid Sick Leave Payroll Tax Credit. Employers are granted a refundable tax credit for 100% of the qualified EPSLA sick leave wages the employer pays in each calendar quarter and for qualified health plan expenses allocable to the wages paid under the EPSLA.
This credit can be used to offset the employer portion of Social Security taxes (6.2%) and the employer portion of the hospital insurance charge (1.45%). Employers will receive a refund for credits exceeding the employer’s liability for social security taxes.
The Act & You
You must keep this Act in mind when making employment decisions. If you are considering a Coronavirus related layoff, you may want to consider doing so before this Act goes into effect. That means before April 1, 2020. Your employees will then be eligible for 100% unemployment, without waiting.
After the act goes into effect, you can still layoff employees if necessary, even if one or more of the employees are receiving Emergency Paid Family Leave or Emergency Paid Sick Leave. The employee will be eligible for 100% unemployment, without waiting.
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