To our clients, colleagues and friends, we are following the constantly evolving laws, rules, regulations, orders and recommendations and have prepared a summary of the new federal Families First Coronavirus Response Act (the “Act”) – as of the evening of March 19, 2020. Please bear in mind these laws are constantly evolving and changing, regulations remain to be enacted with respect to the Act, and application and interpretation is not yet known, so what is true this morning, could change by the end of the day. We will do our best to keep you updated.

Please feel free to contact us if you wish to discuss.

FAMILIES FIRST CORONAVIRUS RESPONSE ACT

  • Effective as of 4/02/2020 and expires 12/31/2020
  • Consists of Emergency Family Medical Leave Act and Emergency Paid Sick Leave Act
  • Applies to private employers with less than 500 employees, except:
    1. Secretary of Labor may issue regulations to exclude businesses with less than 50 employees from complying with either or both of the Emergency Family Medical Leave Act and/or the Emergency Paid Sick Leave Act if such compliance would jeopardize the viability of the business.
    2. Employers of healthcare providers and first responders can elect to exclude those employees, as may be allowed by regulations which have not yet been provided so we do not yet know whether there are limitations on types of healthcare providers.
  • Employers are required to make the required payments to the eligible employees, but may be “reimbursed” for such payments through tax credits. (Note: There are also provisions in pending relief bills for the federal government to provide loans to businesses to make these payments and/or keep businesses afloat and avoid layoffs, etc., which loans would not have to be paid back, but nothing definitive yet).

Emergency Family Medical Leave (“EFML”) amends the federal Family Medical Leave Act (“FMLA”) to address Covid-19 issues as follows:

Employee eligibility:

  • Employee must have worked for the employer for at least 30 days; all other FMLA eligibility criteria waived/inapplicable
  • Employee is unable to work or telework
    • in order to care for a child under 18 yrs old
    • whose school or place of childcare is closed, or childcare provider unavailable
    • due to a public health emergency – emergency declared by federal, state or local government authority pertaining to Covid-19

Duration

  • Up to 12 work weeks
  • To be used by the end of this year

Employee Benefits:

  • Employee is not entitled to EFML payments for the first 10 days (2 work weeks), during which time the employee may use accrued paid time off, sick days, etc.; however, the employer may be required to pay the employee Emergency Paid Sick Leave per the below section.
  • After the initial 10 days, if the leave continues, the employer must pay the employee 2/3 of the employee’s regular rate of pay (if hourly or fluctuating pay, then payments shall be based on the average number of hours per week the employee works), subject to a cap (see next point), for up to 10 weeks.
  • Employee’s EFML benefits are capped at $200 per day and $10,000 in the aggregate.
  • The Employee must be reinstated when return from leave, except employers with less than 25 employees may not be required to reinstate if certain conditions exist – such as the position does not exist because of economic or other changes as a result of the public health emergency (Covid-19), employer makes reasonable efforts to reinstate, and the employer makes reasonable efforts to advise the employee when a similar position becomes available

Emergency Paid Sick Leave(“EPSL”)

Employee Eligibility:

  • Employee is unable to work or telework for any of the reasons set forth below
  • No minimum length of employment
    (if an employer hired a new employee on 3/1/2020 or hires someone as of 4/1/2020, and the employee meets any of the eligibility criteria on 4/2/2020, that employee will be eligible for emergency paid sick leave)

Duration:

  • Full-time employee is entitled to 2 weeks (80 hours) of emergency paid sick leave
  • Part-time employee is entitled to an amount equal to the average hours the employee works in a 2-week period
  • To be used by the end of this year

Basis for Sick Leave and Benefits: all of the below reasons must be related to Covid-19

 

Reason for Sick Leave

Benefits to Employee

If Employee is:

Employee is entitled to receive:

Subject to a federal, state or local quarantine or isolation order

Greater of regular rate of pay or minimum wage, subject to a cap of $511 per day and a cap of $5,110 in the aggregate

Advised by healthcare provider to self-quarantine

||

Exhibiting symptoms and seeking medical diagnosis

||

Caring for someone subject to quarantine or isolation order or advised to self-quarantine

Greater of 2/3 regular rate of pay or minimum wage, subject to a cap of $200 per day and a cap of $2,000 in the aggregate

Caring for a child whose school or childcare is closed or unavailable

||

Substantially similar reason as may be specified by Secretary Health Human Services with others

||

The above emergency paid sick leave is effectively in addition to any accrued sick leave offered by employer because an Employer cannot require the employee to use employer- provided sick leave before this emergency paid sick leave.

An employer may not retaliate, discharge, discriminate or discipline an employee.

These are the laws as of March 19, 2020 which will be effective as of April 2, 2020, and are subject to change by the moment, and as regulations are promulgated.

Please feel free to contact us if you have any questions, comments or wish to discuss this by contacting Lynda Goldfarb at LGoldfarb@clmclaw.com or (516) 365-1400 ext. 127.

Stay healthy and well.