The social, economic, and societal impacts of the spread of the coronavirus will have to be re-evaluated in the coming days, weeks, and years. All employers are currently balancing the health and safety of employees and their families with economic survival. Of immediate and great concern may be the financial needs of employees who are sent home and/or have to confront the need for sick leave and time off. On Saturday, March 14, 2020, the House of Representatives took a step to address these concerns, passing the Families First Coronavirus Response Act (the “Act”). If the Act becomes law (the U.S. Senate must vote before the law is sent to the White House for signature), employees will be eligible to receive paid sick leave and paid family and medical leave through December 31, 2020 to take care of themselves, ill family members, or children who are home due to school closings. Specifically, the draft legislation provides for:
- Emergency family and medical leave. Employees who have worked for thirty (30) days for an employer with fewer than 500 employees will be eligible to take leave (i) if the presence of the employee would jeopardize the health of others because of exposure to the coronavirus or the exhibition of coronavirus symptoms, and the employee is unable to perform his/her job and comply with a health care provider’s recommendation; (ii) to care for a family member who would jeopardize the health of others because of exposure to the coronavirus or the exhibition of coronavirus symptoms; or (iii) to care for a child whose school has been closed, or whose child care provider is unavailable, due to a public health emergency related to coronavirus. This family and medical leave will be unpaid for the first fourteen (14) days, unless the employee chooses to substitute paid time off. After the initial fourteen (14) day period, employers will be required to provide employees with partially paid leave. This paid leave is job protected, with some exceptions for smaller businesses.
- Emergency paid sick leave. Employers will be required to provide paid sick leave to all employees to (i) self-isolate because of a diagnosis of coronavirus; (ii) obtain medical care if they are experiencing symptoms of coronavirus; (iii) comply with a recommendation that the employee’s physical presence on the job would jeopardize the health of others; (iv) care for an ill family member for any of the foregoing reasons; and (v) care for a child whose school has been closed, or whose child care provider is unavailable, due to a public health emergency related to coronavirus. Full-time employees will be entitled to eighty (80) hours of paid sick leave; part-time employees will be entitled to paid sick leave in the amount equal to the average amount of hours they work over a two-week period. Employers should note that this leave entitlement is in addition to any paid sick leave already provided under an employer’s existing sick leave policy. Under this paid sick leave, employees are entitled to their regular rate of pay, unless such leave is taken for the purpose of caring for an ill family member or child. In such instances, employees will receive partial pay. Failure to provide this emergency paid sick leave can result in penalties for minimum wage violations under the Fair Labor Standards Act.
Employers will be able to recoup some of the cost of the paid emergency family and medical leave and emergency sick leave through capped tax credits each quarter. The Act also provides for subsidized meals and nutrition waivers, increased unemployment benefits funding, and free coronavirus testing to individuals. As the Act makes its way through the Senate, it may be subject to some changes. If it is passed and signed by President Trump, the Department of Labor is expected to issue regulations that clarify or expand upon the paid leave provisions.
We will continue to monitor the progress of the Act and provide updates. In the meantime, employers should prepare for employee absences. For some answers to commonly asked questions regarding how to communicate with staff about coronavirus challenges, click here. Employers with additional questions should contact Michael Volpe, Nicholas Reiter, Allison Gotfried, or any other Venable Labor and Employment Group attorney.