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

The COVID-19 Pandemic underscores the lack of paid sick and family leave in America and has motivated Congress to pass legislation that will give more workers access to these core benefits. Today, the need for paid time off to recover from an illness or care for a loved one, is more important than ever. 

Studies show that paid sick leave can reduce disease transmission. On average, states with paid sick leave policies experience eleven percent fewer flu cases within a year of mandating employee access to paid sick leave. Fewer flu cases also results in greater workplace productivity for marginal costs: researchers estimate providing paid sick leave costs employers an average of only 2.7 cents per hour of paid work. Additionally, data shows there is no correlation between laws mandating paid sick leave and hiring, wage, or benefit reductions.

However, the U.S. remains one of few high-income countries without a federal paid sick leave law. And, currently only twelve states and the District of Columbia guarantee workers paid sick leave. While several major companies—such as Walmart, McDonald’s, Apple, Uber, Lyft, and Olive Garden’s parent company Darden Restaurants—have updated their policies to allow COVID-19 paid sick leave, that won’t help the more than 33 million Americans—a quarter of the U.S. workforce—who remain without paid sick leave in the face of the present pandemic. 

Today, only 19 percent of American workers have access to a defined paid family leave benefit. More than 69 percent of America’s lowest-wage private sector workers have no access to paid sick days, compared to only six percent of highest-wage earners. And, more than 40 percent of service-sector workers have no access to a single paid sick day. Furthermore, only six percent of workers with earnings in the lowest ten percent of weekly wages have access to paid family leave, while 34 percent of workers with earnings in the highest ten percent of weekly wages have access to paid family leave.

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State of Play in Congress

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.

Details of the Families First Coronavirus Response Act

  • 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.
  • 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.

Overview of the Emergency Family and Medical Leave Expansion Act:

  • 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:

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