What Employers and Employees Need to Know About the Families First Coronavirus Response Act

On Saturday, March 14, 2020, the House of Representatives overwhelmingly voted in favor of the Families First Coronavirus Response Act, drafted in response to the rising COVID-19 epidemic. To become law, the bill must be passed by the Senate and signed by the President. In anticipation of the bill becoming law, we have provided a resource on how this new law can impact the workplace, and telling employers what to know about the Act.

The legislation will go into effect within 15 days of enactment.  It will be in effect only until December 31, 2020, and applies to employers with fewer than 500 employees. The leave provisions in the law will likely have the greatest impact on employers.

Family and Medical Leave

Historically, the Family and Medical Leave Act has applied only to employers with 50 or more employees. However, the proposed Families First Coronavirus Response Act will allow FMLA to cover employers with 1 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Effectively every employer will be covered by the new law, with one caveat, the U.S. Department of Labor will retain  authority to exempt employers with fewer than 50 employees if providing paid leave “would jeopardize the viability of the business as a going concern.” How this exception will be applied is an open question.   To be eligible for this benefit under the law, employees  must have worked for the employer for at least 30 days.  If an employee qualifies, they may be provided with up to 12 weeks of job-protected FMLA  based on any of the following grounds which broadly apply to the circumstances of the present crisis:

To comply with a recommendation or order by a health authority having jurisdiction or a health care provider on the basis that:

• the physical presence of the employee on the job would jeopardize the health of others because of the exposure of the employee to coronavirus; or
• exhibition of symptoms of coronavirus by the employee; and 
• the employee is unable to both perform the functions of the position of such employee and comply with such recommendation or order.

To care for a family member of an eligible employee with respect to whom a health authority having jurisdiction or a health care provider makes a determination that the presence of the family member in the community would jeopardize the health of other individuals in the community because of: 

• the exposure of such family member to coronavirus; or  
• exhibition of symptoms of coronavirus by such family member.
• To care for the son or daughter of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.
• The first 2 weeks of Family and Medical Leave can be unpaid. Employees may use accrued personal or sick leave during the first 14 days of the leave, but employers may not require employees to do so. After 2 weeks, employers must pay these employees wages no less than two-thirds of the employee’s regular rate of pay.

Paid Sick Leave

Employers are required to provide full-time employees up to 2 weeks (80 hours) of paid sick leave for COVID-19-related reasons. Part-time employees are entitled to the number of hours they work over a 2-week period. Employees must be paid at their regular rate of pay. If an employee is using leave to care for a family member or child, the employer must pay at least two-thirds of the employee’s regular rate of pay.

Tax Credits for Employers

Wages are to be paid by the employer, but the federal government will provide reimbursements to employers through tax credits, subject to certain limitations, i.e., Employers can claim a quarterly tax credit against payroll taxes for payments made for sick days and Family and Medical Leave up to an amount that does not exceed the total payroll taxes paid by the business in that quarter. Any claims in excess of this amount will not be reimbursed.

We all are looking for certainty on the details of this emerging situation, but we are not there yet.  Meanwhile, our team is working to keep you updated on the status of the Senate bill.   If the bill becomes law, we will provide updates on its provisions and how it will interact with state law, particularly in New York.

Please contact us by phone at (212) 888-2680, through our website, with any questions or information you want to provide in this extraordinary time.