The Families First Coronavirus Response Act (the Act) was passed and signed into law on March 18 and will go into effect on April 2, 2020 and continue until December 31, 2020. As our colleagues Josef Glynias and Paul Pautler noted in their excellent summary, this Act has two provisions which speak to employee leave and may have significant implications for employers, including healthcare providers. The Department of Labor has not yet issued guidance on this Act, and we will update this blog as guidance is issued.
Emergency Paid Sick Leave Act (EPLSA)
What it allows: This portion of the Act allows an eligible employee to take 80 hours of paid sick leave for the following COVID-19 related reasons:
- subject to a federal, state or local quarantine or isolation order related to COVID-19;
- advised by a health care provider to self-quarantine due to COVID-19 concerns;
- experiencing COVID-19 symptoms and seeking medical diagnosis;
- caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
- caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
- experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Eligible Employers: Employers with fewer than 500 employees are required to provide full time employees, regardless of the employee’s duration of employment, with 80 hours of paid sick leave at the employee’s regular rate if the employee takes off for reasons 1, 2, or 3 discussed above. The employer can pay 2/3 of the employee’s regular rate if the employee takes off times for reasons 4, 5, and 6 discussed above.
This is capped at $511/day up to $5100 aggregate per employee if used for the employees own health. This is capped at $200/day or $2K aggregate per to care for others.
EPLSA does not contain language which allows the DOL to exempt employers with fewer than 50 employees.
Emergency Family and Medical Leave Expansion Act (EMFLEA)
What it allows: Employees employed for at least 30 days (before the first day of leave) may take up to 12 weeks of job-protected leave to care for the employee’s minor child (if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. The first 10 days of the leave will be unpaid. The employee may supplement this 10 day period with their paid leave (vacation, sick leave, or other PTO available). After the 10 day period, the employee should be paid at 2/3 the employee’s regular rate (capped at $200/day and $10K aggregate per employee).
Eligible Employers: Employers with fewer than 500 employees are required to offer this.
There aren’t clear answers on how to count employees with affiliated entities (between corporate and individual hospitals). The Department of Labor is supposed to issue regulations and guidance prior to April 2, and we expect this may be one of the questions answered.