health emergency. (Earlier versions of the Act provided for additional
qualifying situations and did not provide for telework).
Employer eligibility: Private employers with fewer than 500
employees, and most public employers. For smaller employers,
this bill could introduce FMLA coverage to their workplace. In
the bill’s current form, the expansion would be specific to these
amendments only. There is language allowing regulations to
exclude emergency responders and/or businesses with less than
50 employees where the requirements would jeopardize that business
as a going concern. But at this time, no such exclusions apply.
Employee eligibility: An employee who has been employed for
at least 30 calendar days. Note that this is a much lower threshold
than the 12-month/1,250-hour tenure requirement that otherwise
applies to FMLA leave.
Job restoration: The FMLA’s job restoration requirements generally
apply, with limited flexibility for employers with fewer than
25 employees.
Paid leave requirement: Unlike FMLA leave under the 1992
Act, leave lasting longer than 10 days must be paid at two-thirds an
employee’s regular rate of pay. In more detail:
•• The first 10 days of leave may be unpaid. During this unpaid
10-day period, an employee may elect, but cannot be required, to
substitute any accrued vacation leave, personal leave, or medical
or sick leave for the unpaid leave.
•• After 10 days of leave have been taken, the employer must provide
paid leave. Paid leave must be an amount that is not less
than two-thirds an employee’s regular rate of pay for the number
of hours the employee would otherwise be normally scheduled
to work; provided, however, that such paid leave is capped at
$200/day. Paid leave must continue until the qualifying condition
no longer exists, or after 12 weeks of leave have been taken.
Finally, there is a $10,000 cap on the aggregate amount of paid
leave paid to an employee.
Effective date: The Act takes effect not later than 15 days after
the date the Act is enacted.
Sunset: The paid family leave requirement expires on Dec. 31, 2020.
2. Emergency sick leave
Complementing the FMLA amendment, the Act requires emergency
sick leave for employees who cannot work for any of the
following reasons:
A. The employee is subject to a Federal, State, or local quarantine
or isolation order related to COVID-19;
B. The employee has been advised by a health care provider to selfquarantine
due to concerns related to COVID-19;
C. The employee is experiencing symptoms of COVID-19 and seeking
a medical diagnosis;
D. The employee is caring for an individual who is either (1) subject
to a Federal, State, or local quarantine or isolation order related
to COVID-19 or (2) has been advised by a health care provider
to self-quarantine due to concerns related to COVID-19;
E. The employee is caring for a son or daughter of such employee
if the school or place of care of the son or daughter has been
closed, or the child care provider of such son or daughter is
unavailable, due to COVID-19 precautions;
F. The employee is 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.
Employer eligibility: Private employers with fewer than 500
employees, and most public employers. There is language allowing
regulations to exclude emergency responders and/or businesses
with fewer than 50 employees where the requirements would
jeopardize that business as a going concern. But at this time, no
exclusions apply.
Employee eligibility: The full allotment of paid sick time provided
for by the Act must be available for immediate use by an
employee, regardless of how long the employee has been employed
by the employer.
Allotment of sick leave: For full-time employees, 80 hours. For
part-time hours, emergency sick leave is the number of hours an
employee works, on average, over a two-week period.
No carryover: Emergency paid sick time provided by the Act
does not carry over from one year to the next.
No payout at termination: Paid sick time not used at the time
of an employee’s termination, resignation or retirement does not
need to be paid out to the employee.
May be used before other paid leave: Employers may not
require an employee to use other paid leave provided by the
employer to the employee before the employee uses paid sick time
provided for by the Act.
Pay rate: Paid sick leave must be paid as follows:
•• At the employee’s regular rate, subject to a maximum of $511 per
day and $5,110 in the aggregate for qualifying conditions A, B or
C described above.
•• Two-thirds the employee’s regular rage, subject to a maximum
of $200 per day and $2,000 in the aggregate for qualifying conditions
D, E or F described above.
Effective date: The Act takes effect not later than 15 days after
the date the Act is enacted.
Penalties: A non-complying employer will be in violation of
the FLSA.
Sunset: The paid family leave requirement expires on Dec. 31, 2020.
Cost mitigation: Tax credits
To help offset the cost of paid leave, the Act provides for credits
against quarterly payroll taxes imposed on the employer in an
amount equal to 100 percent of the qualified family leave wages
and paid sick leave wages paid by an employer, subject to the
requirements of forthcoming Treasury Department regulations.
Key takeaway
If you are an employer with fewer than 500 employees, you are
likely going to be required to
provide paid leave to employees who are unable to work
because of certain circumstances relating to the coronavirus pandemic.
Employers should be prepared to implement these requirements
in short order. t
For more information on the Families First Act, contact a member
of the firm’s Labor & Employment Practice Group: Johanna Fabrizio
Parker at jparker@beneschlaw.com or 216-363-4585; or Corey Clay at
cclay@beneschlaw.com or 216-363-4158.
CORONAVIRUS
96 | ISSUE 2 2020 www.piledrivers.org
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