On March 18, 2020, The Families First Corona Virus Response Act was signed into law. This Act provides job-protected paid leave to employees affected by COVID-19 and applies to all employers with fewer than 500 employees.* Fair warning – these provisions can be very confusing to reconcile with existing laws. But the good news is, we are available through the AMRRP PAL program to walk you through any specific situation, so please don’t hesitate to call! The relevant provisions of the Act are summarized below:
A. Emergency Family and Medical Leave Expansion
The new law expands the FMLA to apply to those employees who have a qualifying need related to a public health emergency. A qualifying need occurs when an employee is unable to work or telework due to a need for leave to care for a child if the child’s school or place of care has been closed, or if their child care provider is unavailable, due to a public health emergency related to COVID-19. Only employees who have been employed for at least 30 calendar days are entitled to paid leave, though it applies to both full- and part-time employees.
What must employers provide?
Up to 12 weeks of leave when an employee is unable to work due to a need to care for their children.
- The first 10 days of leave are unpaid, but employees are permitted to substitute any accrued leave for the unpaid leave – though they are not required to do so.
- After the first 10 days of unpaid leave, employers must provide paid leave for the remainder of the 12-week period. Employees must be paid at least two-thirds their regular rate of pay, for the number of hours they would normally be scheduled to work. This paid leave is capped at $200 per day and $10,000 total.
- Like traditional FMLA leave, an employee who takes emergency family leave must be permitted to return to the same or an equivalent position upon return to work, with some rare exceptions.
- Employees who need time off to care for other family members affected by COVID-19 will be able to use regular FMLA leave, which is unpaid. Employees using either emergency or regular FMLA leave are permitted to substitute any accrued leave for the unpaid leave.
- Municipalities may, in their discretion, exempt emergency responders from these benefits.
- Employers are not permitted to take any adverse employment action against an employee who takes emergency FMLA leave.
*Employers with less than 50 employees may qualify for an exemption to these requirements, but it does not appear the exemption would apply to municipalities.
B. Emergency Paid Sick Leave
This Act provides paid sick time for those employees who are unable to work or telework due to the following reasons:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
- The employee is caring for an individual subject to a quarantine order from the Federal, State, or local authorities, or from a health care provider.
- The employee is caring for a child whose school or place of care has been closed, or whose childcare provider is unavailable due to COVID-19 precautions.
- The employee is experiencing any other substantially similar condition, as defined by the Secretary of Health and Human Services.
What must employers provide?
- Employers must provide at least 80 hours of paid sick time to full-time employees. For part-time employees, employers must provide the number of hours of leave that equals the average the employee works over a two-week period. As an illustration, if a part-time employee alternates between working 30 hours a week and 10 hours a week, they are entitled to 40 hours of paid leave.
- Sick time must be paid based on the employee’s regular rate. For employees taking leave for reasons 1, 2, or 3 listed above, the rate is capped at $511 per day and $5,100 total.
- If the leave is taken for reasons 4, 5, or 6 listed above, the rate is capped at $200 per day and $2,000 total.
- If the employee is using paid sick time to care for another individual subject to a quarantine order, or to care for a child whose school or place of care has been closed, or whose child care provider is unavailable, the employee is only entitled to be compensated at two-thirds the regular rate of pay; again, subject to the above-referenced caps of $200/day and $2,000 total.
- An employer cannot require an employee to exhaust other forms of leave before using emergency paid sick leave. An employer also cannot require, as a condition of providing paid sick time, that an employee find a replacement to cover the employee’s hours.
- Employers who do not comply with these requirements, or who take any adverse employment action against an employee who takes leave related to this Act, will be subject to penalties under the Fair Labor Standards Act.
- The emergency paid sick leave provided under the new federal law is in addition to the required allotment under Arizona’s Minimum Wage and Healthy Families Act. By illustration, an employer with 15 or more employees is required to provide up to 40 hours of paid sick time under Arizona law. That employer must provide additional 80 hours of additional leave under federal law, for a total of 120 hours of paid leave.
- The Secretary of Labor may issue regulations allowing employers to exempt emergency responders from these benefits based on certain criteria, which are yet to be determined.
We know that the COVID-19 pandemic has wreaked havoc on your cities and towns, and that the national legislative response, while important, has created additional uncertainty and questions. Again, please feel free to utilize the PAL line on any issue facing your workforce at this time; we highly recommend you do not take any employment action before discussing the issue with us to ensure you have taken into account the most recent changes in the law that may provide additional protections to your employees.
Most importantly, we hope for the well-being of you and your families and for a quick end to this crisis.