Families First Coronavirus Response Act

On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act. The following is prepared based upon our review and legal analysis of the portions of the Act which may impact employers. The legislation does not go into effect until April 2, 2020, and ends on December 31, 2020. It is our analysis that the employee protected leave benefits set forth in the Families First Coronavirus Response Act cannot be applied retroactively prior to the effective date of April 2, 2020. It is presumed prior to April 2, 2020, the U.S. Department of Labor (“DOL”) will enact federal regulations to guide employers on the new legislation. Keller Thoma will prepare a draft policy for use in an employee handbook once the regulations are published.

We will continue to monitor and will keep you apprised of any updates regarding this legislation as well as any additional state and federal legislation and executive orders that impact employers.

Emergency Family and Medical Leave Expansion Act

Among the provisions in the Families First Coronavirus Response Act is the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). This is an amendment to the Family and Medical Leave Act (“FMLA”) but note that the EMFMLEA is different from the FMLA in key respects.

Covered Employers: Includes employers with less than 500 employees, although the DOL may adopt regulations to exempt small businesses with less than 50 employees.

Eligible Employees: Includes employees who have worked for the employer for at least 30 calendar days.

Protected Leave: Up to 12 weeks leave if the employee is unable to work or telework due to a need for leave to care for the employee’s child if the school, place of care, or the child care provider is closed due to COVID-19.

Paid Leave: The first 10 days of the EFMLEA leave is unpaid, but employees may use available paid leave. After the first 10 days and up to the remaining 10 weeks, the employer must provide paid leave equivalent to the amount of not less than 2/3 of the employee’s regular rate of pay times the number of hours per work that the employee would otherwise normally be expected to work. Paid leave is capped at $200.00 per day and $10,000.00 total.

Job Restoration: Equivalent to job restoration rights under the FMLA, i.e. must be returned to substantially similar position, pay, and benefits. Job restoration does not apply to employers with less than 25 employees.

Please note that there is an exception to the paid leave benefits provided under EFMLEA for employers of employees who are health care providers or an emergency responder. Such employers may elect to exclude such employees from application of EFMLEA. The Department of Labor may also adopt regulations exempting the same.

Emergency Paid Sick Leave Act (“EPSL”)

Employees of private employers with less than 500 employees and employees of governmental agencies are entitled to paid sick time provided that they cannot work or telework due to the need for leave for any of the following:

1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19;
5. The employee is caring for his or her child if the school or place of care, or childcare provider has been closed due to COVID-19 precautions; or
6. 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.

An employer of employees who are health care providers or emergency responders may elect to exclude such employees from the application of providing paid sick time, as set forth above. The DOL may also implement regulations exempting employers with less than 50 employees from the requirements of this statute.

Full-time employees are entitled to 80 hours of paid sick time to use for the above-stated reasons. Part-time employees are entitled to paid sick time based upon the number of hours they work on average over a 2-week period. Paid sick time ends at the employees’ next regular shift immediately when the need for the paid sick time ends. The paid sick time does not roll over from year to year.

The amount of paid sick time is based upon the employee’s compensation and number of hours the employee would otherwise be normally scheduled to work but cannot exceed:

• $511.00 per day and $5,110.00 total for the use of leave described in paragraphs (a), (b), or (c), above; and
• $200.00 per day and $2,000.00 total for the use of leave described in paragraphs (d), (e), or (f), above. The employee’s required compensation for use set forth in these paragraphs (d), (e), or (f) must be two-thirds of the employee’s compensation.

Employers cannot condition providing paid sick time under the EPSL on requiring that an employee find a replacement employee to cover the hours during which he or she is using the paid sick time. Additionally, an employer may not require that an employee use other paid leave before the employee uses the paid leave under the EPSL.

Emergency Unemployment Insurance and Stabilization and Access Act of 2020

The Families First Coronavirus Response Act also provides $1 billion in 2020 for emergency grants to states for activities related to unemployment compensation.

Michigan Governor Gretchen Whitmer has also issued Executive Order, No. 2020-10, which extends unemployment benefits to individuals under the following circumstances:

1. Self-isolation or self-quarantine due to elevated risk from COVID-19 due to being immunocompromised;
2. Displaying the symptoms of COVID-19;
3. Leaving work due to having contact in the last 14 days with someone with a confirmed diagnosis of COVID-19;
4. Needing to care for someone with a confirmed diagnosis of COVID-19; or
5. A family care responsibility as a result of a government directive.

Employees who fit one of the above criteria are deemed to have left work “involuntarily” and are considered “laid off” for purposes of unemployment. The Executive Order also discusses other provisions of unemployment, including lengthening the time for individuals to apply and extends unemployment compensation benefits to 26 weeks. The Executive Order further states that an employee will not be charged for unemployment benefits if the employee becomes unemployed due to an Executive Order requiring them to close or limit operations.

The above provisions are in place until April 14, 2020.

Given that events are rapidly evolving, we will be monitoring the Families First Coronavirus Response Act and any subsequent legislation and regulations as they become available. In the meantime, should you wish to discuss any of the above, please do not hesitate to contact your Keller Thoma attorney.