Authors’ notes: President Trump signed the Act in the evening of March 18. Affected employers must be prepared to implement the Act’s
leave programs as of April 2, 2020.
Please note that this information is current as of March 23, 2020, based on the available data. However, because COVID-19’s status and
updates related to the same are ongoing, we recommend real-time review of guidance distributed by the CDC and local officials.
Early in the morning on March 14, 2020, the House of
Representatives passed the Families First Coronavirus
Response Act with broad bipartisan support. The Act
introduced paid FMLA leave and paid sick for employers with
fewer than 500 employees. After the Act was passed by the House,
it went through a series of “technical corrections” negotiated by
Speaker Pelosi and Secretary Mnuchin. The revised Act is now
being considered by the Senate.
While the official characterization of the edits made is “technical”,
the changes are significant:
•• Emergency FMLA leave only for child care disruption. The
original text of the Act provided for multiple conditions supporting
up to 2 weeks of unpaid and 10 weeks of paid emergency
FMLA leave, including an employee’s quarantine. The
revised text only provides for one qualifying condition: if an
employee is unable to work (or telework) in order to care for
a child if the child’s ordinary place of care (including a school)
is unavailable.
•• Emergency FMLA leave and paid sick leave are financially
capped. The requirement for up to 10 weeks of paid FMLA leave
and 80 hours of sick leave remain. However, paid emergency
FMLA leave is capped at $200/day and $10,000 in the aggregate,
and paid sick leave is capped at $200 or $511/day and $2,000 or
halfpoint/123RF
CORONAVIRUS
Revised Families First Coronavirus Response
Act Narrows the Scope of Emergency FMLA
Expansion and Paid Sick Leave Benefits
By Johanna Fabrizio Parker and Corey Clay, Benesch Law
$5,110 in the aggregate depending on the condition supporting
the request for leave. These changes harmonize the potential
leave liability with the tax credits provided for in the Act. Subject
to the specific conditions of forthcoming Treasury Department
regulations, 100% of the emergency FMLA and paid sick leave
wages may be reimbursed via payroll tax credits.
•• Qualifications for paid sick leave are tightened. Although
there are now six qualifying conditions for paid sick leave, the
definitions of those conditions have been more narrowly defined.
A significant feature that did not change: the Act’s paid leave
requirements continue not to apply to employers with 500 or more
employees. Only those employers with fewer than 500 employees
are impacted. Here is our summary of the requirements in the Act
as presently being considered by the Senate:
1. Expansion of FMLA leave
The Act amends the Family and Medical Leave Act (“FMLA”) to
provide for as many of 12 weeks of job-protected leave for employees
who are unable to work (or telework) because they must:
•• Care for a son or daughter under 18 years old if the school or
place of care for the child has been closed, or the childcare
provider of such son or daughter is unavailable, due to a public
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