The Families First Coronavirus Response Act: What it Does for American Workers Who Desperately Need Paid Leave

The Act contains two sections regarding employee leave benefits: the Emergency Paid Sick Leave Act and the Emergency Family Medical Leave Expansion Act. These provisions are effective from April 1, 2020 through December 31, 2020. On the same day the Act took effect, the U.S. Department of Labor (DOL) issued temporary rules to guide implementation. Details of each provision are outlined below.

• The emergency paid sick leave applies only to sick time needs related to COVID-19, including:
  1. Employees subject to a federal, state or local quarantine or isolation orders;
  2. Employees advised by health providers to self-quarantine;
  3. Employees with COVID-19 symptoms and seeking diagnoses;
  4. Employees caring for an individual who is subject to an order described in (1) or has been advised as described in (2) (“individual” not defined);
  5. Employees caring for a child because the school is closed or child care provider is unavailable due to COVID-19; or
  6. Employees 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.
• Applies to private-sector employers with 499 employees or less and all public agencies regardless of size.
  • An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from these emergency paid sick leave requirements.
  • Specification on employers who meet the 500-employee threshold—including corporations with separate establishments or divisions or ownership interest in another corporation—is provided by DOL.
  • DOL will not take enforcement actions against covered employers for violations occurring within 30 days of the enactment of the Act, March 18 to April 17, 2020, if the employer violated the Act “reasonably” and “in good faith, violations were not “willful,” and DOL receives a written communication form that the employer will comply with the Act in the future.
• Authorizes Secretary of Labor to issue regulations to:
  • Exclude certain health care providers and emergency responders from the definition of eligible employee, including by allowing such employers to opt those individuals out; and
  • Exempt small businesses with fewer than 50 employees if the employer determines that: leave would result in expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; employee’s absence would entail a substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities; or, insufficient employees able, willing, and qualified at time and place needed to perform labor or services provided by the employee, and these labor or services are needed for business to operate at a minimal capacity. There is no application process to be exempted.
  • Director of the Office of Management and Budget has the authority to exclude certain federal government employees for good cause.
• Requires covered employers to provide 80 hours of paid sick time (or the equivalent of 10 eight-hour days) to full-time employees on top of any other existing paid leave program of the employer to cover employees not working; and an employer is prohibited from requiring an employee to use other paid leave first. Part-time time employees are required to receive the number of hours that they work, on average, over a 2-week period.
• Requires covered employers to pay employees their regular rate of pay; the federal minimum wage; a state minimum wage where they are employed; or a local minimum wage where they are employed.
  • However, workers only have to be compensated 2/3 of this amount for emergency paid sick leave used for the purposed numbered (4), (5), and (6) above, which includes caring for another individual.
  • Full wages, not to exceed $511 per day and $5,110 in the aggregate, for a use described in (1), (2), or (3) above.
  • Wages not to exceed $200 per day and $2,000 in the aggregate, for a use described in (4), (5), or (6) above.
• Emergency paid sick leave is available for immediate use by the employee, regardless of how long the individual has been employed by the employer.
• Emergency paid sick leave is limited on the employee’s inability to telework. That includes for example, if the employee is experiencing serious COVID-19 symptoms or the power or internet goes out at the employee’s home. The regulations further distinguish situations in which no work is available from those in which a qualifying event causes an employer to be unable to work or telework. 
• Employees are protected against retaliation, including job loss, discipline, and/or discrimination, for using their emergency paid sick leave, filing a complaint, or testifying in an action under the law.
• Employers cannot require an employee, as a condition of providing emergency paid sick leave, to be involved in searching for or finding a replacement employee to cover the hours when they are using the leave.
• After the first workday (or portion thereof) in which an employee receives emergency paid sick leave, an employer may require the individual to follow reasonable notice procedures.
• Allows employers to receive a 100 percent refundable payroll tax credit on the wages required to be paid.
• Nothing in the law diminishes other rights or benefits of an employee under the following: any other federal, state, or local law, collective bargaining agreement, or existing employer policy.

• The public health emergency leave under the Family and Medical Leave Act (FMLA) expansion applies only to employees who are:
  • unable to work (or telework) due to a need for leave to care for his or her son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider of the son or daughter is unavailable, due to COVID-19 related reasons.
  • The FMLA’s “son or daughter” definition applies, which includes a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis (in loco parentis refers to one who is acting and intending to act as a parent, with no requirement of a legal or biological relationship).
• Limits public health emergency leave on the employee’s inability to telework. In other words, if the employee can work from home, he or she does not qualify to take public health emergency leave.
• Applies to employers with 499 employees or less and employees who have been employed with their employer for at least 30 calendar days. An employer of an employee who is a health care provider or an emergency responder may elect to exclude that employee from the public health emergency leave.
• Authorizes the Secretary of Labor to issue regulations to:
  • Exclude certain health care providers and emergency responders from eligibility for the public health emergency leave expansion; and
  • Exempt small businesses with fewer than 50 employees if the employer determines that: leave would result in expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; employee’s absence would entail a substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities; or, insufficient employees able, willing, and qualified at time and place needed to perform labor or services provided by the employee, and these labor or services are needed for business to operate at a minimal capacity. There is no application process to be exempted.
  • Director of the Office of Management and Budget has the authority to exclude certain federal government employees for good cause.
• The first 10 days of public health emergency leave may be unpaid; during these 10 days, an employee may elect to substitute any accrued vacation, personal, medical, or sick leave.
• Requires covered employers to provide 10 weeks of paid leave. Leave must be paid at an amount no less than two-thirds of the employee’s wages, regular rate of pay and based on the number of hours the employee would otherwise normally be scheduled to work. However, the paid leave may not to exceed $200 per day and $10,000 in the aggregate.
• Employees are entitled upon return from leave to be restored to their job position or to an equivalent position with equivalent employment benefits, pay, and other terms/conditions of employment. However, an employer with less than 25 employees does not have to restore an employee who took a public health emergency leave to their position if all of the following apply:
  • The position held by the employee when the leave began no longer exists due to economic conditions or other changes to operating conditions that affect employment and were caused by the public health emergency during the period of leave; and
  • The employer made a reasonable effort to restore the employee to an equivalent position with equivalent benefits, pay, and employment terms/conditions; and
  • If the reasonable effort to restore the employee fails, the employer makes reasonable efforts for a period of 1-year to contact the individual if an equivalent position becomes available.
• Allows employers to receive a 100 percent refundable payroll tax credit for the wages required to be paid.

See the following resources for further information on current U.S. family leave policies:

• Paid Family Leave: The Basics
• The Family and Medical Leave Act (FMLA): The Basics
• State Paid Family Leave Laws Across the U.S.  
• State Family and Medical Leave and Job-Protection Laws  
• Paid Family Leave in the United States: A Primer on Working Family Trends and Paid Family Leave