Last Saturday, the U.S. Congress passed the federal Families First Coronavirus Response Act, mandating paid leave and expanding FMLA benefits for those affected one way or another by coronavirus. It was sent to the Senate, where it has not yet passed, but it is likely to be approved. Although still subject to Senate amendments, if it becomes law as it is written today, employees of employers with fewer than 500 employees would be entitled to the following paid leave benefits:
- Full and part time employees are eligible for this leave regardless of their length of service. Although no regulations have issued yet on this proposed Act, it appears to not cover seasonal or temporary employees.
- Full-time employees would be entitled to 80 hours of paid leave.
- Part-time employees would be entitled to the amount of leave that equals the number of hours that the part-time employee would work on average in a two week period.
- To self isolate because the employee is diagnosed with coronavirus;
- To obtain a medical diagnosis or care if the employee is experiencing symptoms of coronavirus;
- To comply with a recommended order by a public official or health care provider that the physical presence of the employee on the job would jeopardize the health of others because of: 1) an exposure of the employee to the coronavirus or the employee has symptoms of coronavirus; or 2) symptoms of the coronavirus.
- To care for or assist a family member of the employee who is self-isolating because of a diagnosis of coronavirus or has symptoms of coronavirus or if a public health official or health care provider has determined that the physical presence of the family member in the community would jeopardize the health of the community because the family member has been diagnosed with coronavirus or has symptoms of same.
You may ask for a doctor's note or a note from a public health official to verify the above.
Other provisions of the emergency paid leave portion of the Act:
- Employees are entitled to use this emergency paid leave before using other benefit time
- Employees may not carry it over to next calendar year
- Employers are prohibited from reducing existing leave benefits provided by policy as a result of this Act.
It appears that employers are not obligated to pay employees for any unused emergency leave available under this Act. It is made available for specific circumstances and is not generally available for any illness related absence other than coronavirus related leaves.
- The benefits under this Act expire on December 31, 2020.
Expansion of FMLA:
For employers who are already subject to the FMLA, the Act also includes an expansion of the FMLA to include paid time off after two weeks for coronavirus related absences, including child care resulting from school closures.
- Employees of employers with fewer than 500 employees, although employers with fewer than 50 employees are exempt if the leave “would jeopardize the viability of the business.”
- The employee must have worked for the employer for at least 30 days.
The current version of the Act does not define how to count 50 employees or what would meet the test of jeopardizing the viability of the business.
- 12 weeks of FMLA leave for absences resulting from coronavirus issues.
- Paid leave at the rate of 2/3 of the employee’s pay after the first two weeks of leave.
Presumably, an employee using this FMLA leave can utilize other benefit time or emergency paid leave (see above) for the first two weeks of leave.
- To comply with a public health official recommends or medical provider directs that the physical presence of the employee on the job would jeopardize the health of others because of the 1) exposure of the employee to coronavirus or 2) the employee exhibits symptoms of coronavirus.
- To care for a family member of an eligible employee where a public health official recommends or medical provider directs that the physical presence of the family member in the community would jeopardize the health of the community because 1) the family member has been diagnosed with coronavirus or 2) has symptoms of same.
- To care for a child of the employee who is under 18 years old if the elementary or secondary school or place of care has been closed, or the childcare provider of the child is unavailable, due to a public health emergency.
We will keep you informed of developments.